Interference 103,579
disclosed in Hergersberg. This fragment is about
800 base pairs long and falls wholly within fragment 2
(SEQ ID No. 2) of Hofvander. This is confirmed by the
testimony of Rask (HR140-142, 156). The about 800 base
pair fragment is shorter than only one of Hofvander’s
antisense sequences, namely, fragment 2 (SEQ ID No. 2).
Furthermore, Hergersberg uses both the 275 base pair
fragment and the about 800 base pair fragment in a single
construct [n. “Although Bruinenberg refers to the fragment
as being approximately 500 base pairs long, it is the
same fragment which Rask refers to in his testimony as
an 800 base pair fragment (HDX38)”]. . . . .
Visser further defines the antisense sequences Hergersberg
utilized to produce its constructs as follows (VB 24, last para.;
emphasis added):
As mentioned above, Hergersberg teaches two
antisense GBSS cDNA fragments which are used in several
different constructs. It is now clear from the record
that the 275 base pair fragment of Hergersberg overlaps
with fragment 1 (SEQ ID No. 1) of Hofvander, and the
800 base pair fragment falls wholly within fragment 2
(SEQ ID No. 2) of Hofvander (HR139-142, 155-156).
Even accepting all Visser’s arguments as correctly representing
the facts indicated therein, we still require a reasonable
explanation why it would have been obvious to persons having
ordinary skill in the art to insert Hofvander’s 342 bp genomic
DNA fragment (SEQ ID No. 1), Hofvander’s 2549 bp genomic DNA
fragment (SEQ ID No. 2), or Hofvander’s 492 bp genomic DNA
fragment (SEQ ID No. 3) in the antisense direction into the
genome of potato plants to regulate expression of the PGBSS gene
in view of Hergersberg’s instructions to insert its 275 bp cDNA
fragment and/or 500/800 bp cDNA fragment in the antisense
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