Interference 103,579
issue in this case is not whether persons having ordinary skill
in the art at the time reasonably would have predicted success
using antisense technology generally to regulate the function of
a wide variety of genes in prokaryots and eukaryots as was
claimed in the Enzo case based on evidence of success using the
limited kinds and number of antisense constructs shown in the
Enzo case to regulate the function of particular genes in E. coli
or tomato plant cells. In this case, we are asked to consider
whether persons having ordinary skill in the art reasonably
would have expected that the function of the potato GBSS gene
could be regulated in potato plants by inserting a gene construct
comprising Visser’s full length cDNA or genomic DNA coding for
PGBSS into the genome of the potato plant based on evidence that
the function of the potato GBSS gene could be regulated in a
potato plant by inserting a genomic DNA fragment selected from
Hofvander’s group consisting of three specifically identified
fragments of the PGBSS gene, including DNA segments found inside
and/or outside the coding region of the PGBSS gene, into the
genome of the potato plant. Given the findings in Enzo Biochem.
Inc. v. Calgene Inc., supra, we are not convinced that any
evidence in this record of prior successes and/or failures using
antisense technology to regulate the function of other genes in
other prokaryotic or eukaryotic species is material to the
antisense technology of this interference which is specifically
-89-
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