Interference 103,579
prokaryotic or eukaryotic cell which comprises
introducing into said cell the DNA construct of
claim 1.
5. A non-native DNA construct which, when present in a
prokaryotic or eukaryotic cell containing a gene,
produces an RNA which regulates the function of said
gene, said DNA construct containing the following
operably linked DNA segments:
a. a transcriptional promoter segment;
b. a transcription termination segment; and
c. a DNA segment comprising a segment of said
gene, said gene segment located between said
promoter segment and said termination segment
and being inverted with respect to said promoter
segment and said termination segment, whereby
the RNA produced by transcription of the
inverted gene segment regulates the function
of said gene.
In review of a district court’s findings relative to the
level of predictability/unpredictability in the art from about
1990 to about 1992, the court stated, Enzo Biochem. Inc. v.
Calgene Inc., 188 F.3d at 1372, 52 USPQ2d at 1136:
The district court next found that antisense was
a highly unpredictable technology, a finding amply
supported by the record. See, e.g., Inventor Inouye
Test., J.A. at 349 (analogizing the predictability of
antisense to “drilling for oil”); Calgene Expert
Douglas A. Melton, Ph.D. Dep. J.A. at A26,884 (“[T]his
method is not universally applicable, it hasn’t proven
to be, and that’s why it’s such an interesting area
of research, because scientists don’t understand the
rules.”). A text on cell biology, which was introduced
into evidence at trial by Enzo, made the observation
that:
It is, however, important to realize that antisense
strategies have not been universally straightforward
or as easy to apply as was initially hoped, nor has
the interpretation of results always been unambiguous,
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