Interference 103,579
to the count is not anticipated (35 U.S.C. § 102) by, or obvious
(35 U.S.C. § 103) in view of, the subject matter defined by
Visser’s’s claims designated as corresponding to the count, there
is no interference-in-fact in this case.
To establish that the subject matter Visser claims is not
anticipated by the subject matter Hofvander claims, the evidence
as a whole must support a finding that at least one element of
the invention Visser claims is not described by Hofvander’s
claims. In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657
(Fed. Cir. 1990)(“anticipation or lack of novelty requires . . .
that all the elements of the claimed invention be described
in a single reference”). “[A]nticipation under § 102 can be
found only when the reference discloses exactly what is claimed
. . . .” Titanium Metals Corp. v. Banner, 778 F.2d 775, 780,
227 USPQ 773, 777 (Fed. Cir. 1985)(emphasis added).
Visser’s claims are directed to gene constructs of the
potato plant comprising full length cDNA or genomic DNA coding
for PGBSS in reverse orientation, methods of producing transgenic
potato plants which comprise integrating a construct comprising
full length cDNA or genomic DNA coding for PGBSS in reverse
orientation into the genome of the potato plant, and transgenic
potato plants produced by integrating a construct comprising full
length cDNA or genomic DNA coding for PGBSS in reverse
orientation into the genome of the potato plant. A key element
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