Interference 103,579
claims designated as corresponding to the count is patentable
over Hergersberg’s teachings (VB 25, second full para.).
However, Visser argues that the decision on preliminary motions
holding Hofvander’s claims designated as corresponding to the
count patentable over Hergersberg’s teachings is erroneous
because the APJ was not fully apprized of Hergersberg’s teachings
(VB 21). Visser argues (VB 21; footnote included in text):
Although the APJ was advised that Hergersberg discloses
a GBSS cDNA fragment of about 275 base pairs, the APJ
was not advised that another much longer fragment was
used in Hergersberg’s antisense constructs. Further,
the APJ was not advised that Hergersberg used both of
these fragments in a single antisense construct.
Several schematic diagrams comparing the sequences
used by each of Hofvander, Visser and Hergersberg, namely,
VDX2, HDX8 and VDX15 [n. “HDX8 and VDX15 are “corrected”
versions of VDX2.”], were presented during the motions
period; however, none of them accurately depict the
antisense fragments used by Hergersberg. . . . .
Providing what Visser considers to be a clearer view of
Hergersberg’s disclosure, Visser states (VB 22, second para.,
through VB 22-23, bridging para.)(footnote included in text):
Although [the APJ’s statement that “[t]he Hergersberg
antisense sequences . . . are much smaller than those
used by Hofvander” (Paper No. 74, p. 6)] . . . may be
correct for the 275 base pair fragment when compared
to SEQ ID No. 2 of Hofvander, clearly the 275 base pair
fragment is not much smaller than Hofvander fragment 1
(SEQ ID No. 1) depicted as a 342 base pair fragment
(“nr. 1") in HDX8 and VDX15. In addition, it is now
clear that fragment 1 of Hofvander overlaps with
Hergersberg’s 275 base pair fragment by about 240
base pairs (approximately 87%)(VDX29, HR139, 155-156).
In any event, there is a much larger fragment
-92-
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