Interference 103,579
“method[s] for tuber-specific expression of a gene product in
potato, comprising transforming said potato with a DNA molecule
comprising an isolated promoter from the potato gene coding for
. . . GBSS . . .” (Hofvander’s Claims 21 and 23; emphasis added).
Unlike Claims 1, 4-8, 11, 13-20, 22, and 24-27 of Visser’s
involved application, all of which require that the DNA sequences
be in the antisense orientation, the inventions of Claims 4, 6,
21 and 23 of Hofvander’s involved application do not appear to be
directed to, or utilize, DNA sequences in antisense orientation.
Visser argues (VB 38, first full para.):
The APJ has stated that “It is Visser’s position
that the constructs of Hofvander are not antisense”
(Paper No. 74, pp. 12-13). This is, however, only
Visser’s position with respect to Hofvander claims 4,
6, 21 and 23. It is Visser’s position that Visser’s
separately patentable claims (which require the DNA
sequences to be in the antisense orientation) are
distinguishable over Visser claim 23 and Hofvander
claims 4, 6, 21 and 23 because these claims fail to
recite that the DNA sequences are in the antisense
orientation.
Rather than dispute Visser’s position, Hofvander replied
(HB, pp. 60-61):
While Visser calls attention to the fact that
“Hofvander claims 4, 6, 21 and 23 are not directed to
antisense constructs,” Visser ignores the fact that
the other Hofvander claims designated as corresponding
to the count, claims 1, 7-20, 22 and 50, all recite
antisense constructs. . . . Assuming arguendo, that
the antisense constructs are directed to a separately
patentable invention from the sense constructs, it is
irrelevant to Visser. Visser has no claims in this
interference directed to sense constructs. As stated
in Visser’s Brief, a restriction requirement was issued
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