Interference 103,579
No. 3 in reverse orientation into the genome of the potato plant,
Visser’s claims designated as corresponding to the count do not
anticipate Hofvander’s claims designated as corresponding to the
count. For the subject matter defined by one party’s designated
claims to be anticipated by subject matter defined by the other
party’s designated claims in this case, the constructs each
party’s claims for insertion into the genome of the potato plant
must be exactly the same. For the constructs defined by one
party’s designated claims to be exactly the same as the
constructs defined by the other party’s designated claims in this
case, the DNA in reverse orientation in the constructs of each
party’s claims must be exactly the same. In this case, the
evidence as a whole establishes that the DNA in reverse
orientation of the constructs defined by the Hofvander’s claims
designated as corresponding to the count is not exactly the same
as the DNA in reverse orientation of the constructs defined by
the Visser’s claims designated as corresponding to the count.
“A gene is a chemical compound, albeit a complex
one . . . .” Amgen Inc. v. Chugai Pharm. Co., 927 F.2d 1200,
1206, 18 USPQ2d 1016, 1021 (Fed. Cir.), cert. denied, 502 U.S.
856 (1991). Considering all the evidence of record, the court
concluded in Amgen Inc. v. Chugai Pharm. Co., 927 F.2d at 1209,
18 USPQ2d at 1023, “[I]f the DNA sequence was not obvious, host
cells containing such sequence . . . could not have been
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