Interference 103,579
between antisense constructs and sense constructs.
Based upon Visser’s belief that Hofvander claims 4, 6,
21 and 23 relating to sense constructs are directed to
a separately patentable invention, assuming that Visser
filed a divisional application directed to claim 3,
perhaps Visser should have filed a motion under 37 C.F.R.
§ 1.633(e)(1) for an additional interference between
Hofvander claims 4, 6, 21 and 23 and Visser claim 3.
In the instant interference, however, because
Hofvander has claims directed to antisense constructs,
which have been designated as corresponding to the
Count, the Hofvander claims define the same patentable
invention as the Visser claims. Because at least one
of Hofvander’s claims is directed to antisense constructs,
the Visser invention directed to antisense constructs
defines the same patentable invention as the Hofvander
invention in accordance with 37 C.F.R. § 1.601(n). As
such, this argument by Visser is once again unpersuasive.
Since the parties maintain at final hearing only that
Claims 1, 7-20, 22 and 50 of Hofvander’s involved application are
drawn to the “same patentable invention” as Claims 1, 4-8, 11,
13-20, 22, and 24-27 of Visser’s involved application, we limit
our claim interpretation to, and proceed to decide the issues
presented in this case with regard to, Claims 1, 7-20, 22 and 50
of Hofvander’s involved application and Claims 1, 4-8, 11, 13-20,
22, and 24-27 of Visser’s involved application.
(3) Findings and conclusions
Based on the claims, the supporting specification, and
prosecution history of Hofvander’s and Visser’s involved
applications, and other extrinsic evidence of record, we find
and/or conclude that:
I. Hofvander’s claims are generally directed to:
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