Interference 103,579
vice versa. We decline to determine patentability or priority of
invention between two parties where one party concedes that the
invention being claimed is unpatentable to it and the other has
attempted to cancel its claim drawn to the same invention. We
shall not base our determination whether or not an interference-
in-fact exists in this case on the patentability of Hofvander’s
Claim 6 to Hofvander over prior art including Visser’s Claim 23,
or the patentability of Visser’s Claim 23 to Visser over prior
art including Hofvander’s Claim 6. Since the subject matter of
Claim 6 of Hofvander’s involved application does not appear to be
patentable to Hofvander and the subject matter of Claim 23 of
Visser’s involved application does not appear to be patentable to
Visser, we will not determine that an interference-in-fact exists
based on those claims. Interference proceedings are not designed
to determine questions of patentability between two parties
claiming subject matter unpatentable to one or the other. See
37 CFR § 1.601(i).
Aside from Visser’s Claim 23, none of Visser’s claims
designated as corresponding to the count is directed to, or
utilizes, a DNA construct in its sense orientation. Hofvander’s
Claims 4, 21 and 23, although designated as corresponding to the
count, are directed to “[a] fragment of a potato gene coding for
. . . GBSS . . . selected from the group consisting of SEQ ID
Nos. 1, SEQ ID No. 2 and SEQ ID No. 3" (Hofvander’s Claim 4) and
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