Interference 103,579
designed to regulate the function of the PGBSS gene in potato
plants.
In this case, the burden to establish the level of
predictability in the art initially sits with Visser. Having
considered and weighed all the evidence of record, we find that
the preponderance of the evidence of record establishes that
antisense technology, even as limited to the subject matter of
the parties’ claims designated as corresponding to the
interference count in this case, was highly unpredictable at the
time the parties made their inventions.
The specification of Visser’s involved application states
(VR 144, l. 7-11):
Visser (1989)12 tested whether the antisense approach
could be used to inhibit the expression of the gene for
granule-bound starch synthase in potato using heterologous
antisense constructs, i.e., an antisense gene constructed
from a maize genomic GBSS gene.
According to Visser’s specification, the “results were not too
encouraging” (VR 147, l. 6). Hofvander does not appear to
disagree with Visser’s analysis of Visser’s 1989 experiments.
Aside from its own work, Visser considers Hergersberg13
12 Visser (Visser’s PhD Thesis), “Manipulation of the
Starch Composition of Solanum Tuberosum L. Using Agrobacterium
Rhizogenes Mediated Transformation,” PhD Thesis, University of
Groningen, The Netherlands, pp. 9-139 (February 27, 1989)(VDX 7)
13 Hergersberg, “A Molecular Analysis of the waxy Gene
from Solanum tuberosum and Expression of waxy antisense RNA in
transgenic Potatoes,” Inaugural-Dissertation zur Erlangung des
-90-
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