Interference 103,579
(VDX 1) and Leij (VDX 3) to be the closest prior art to the
subject matter claimed in Hofvander’s involved application
(VB 20). Leij discloses the complete 2961 bp genomic nucleotide
sequence of the PGBSS gene (VDX 3, p. 243, Fig. 1; HDX 8;
VDX 15), but Leij was not concerned with antisense technology.
With regard to the patentability of the subject matter Hofvander
claims and the subject matter of Visser’s own claims designated
as corresponding to the count in view of Hergersberg’s teachings,
the APJ’s decision on preliminary motions states (Paper No. 74,
p. 6):
With respect to the Hergersberg publication, the
APJ agrees with Hofvander that this publication would
not render the Hofvander claims unpatentable. The
Hergersberg antisense sequences, assuming that the
sequences are antisense, are much smaller than those
used by Hofvander. When the Hergersberg antisense
sequences are incorporated into a potato plant, the
modified plant reduced amylose production by 30%.
Since a potato normally produces amylose in an amount
of 20 to 25%, it would appear that Hergersberg’s modified
potato plants produced amylose in an amount of from
14% to 18%, whereas Hofvander’s modified potato plants
result in production of 6 to 9% amylose. Moreover, in
distinguishing over the Hergersberg publication, the
Hofvander opposition . . . also relies upon the same
reasons as did Visser in urging that his claims were
patentable over this publication.
Visser maintains the view that the subject matter of its
Doktorgrades der Mathematisch-Naturwissenschaftlichen Fakultat
der Universitat zu Koln, University of Cologne, Cologne, pp. 1-79
(1988)(VDX 1)
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