Interference 103,579
direction into the genome of a potato plant to regulate
expression of the potato GBSS gene, yet it would not have been
obvious to persons having ordinary skill in the art in view of
the subject matter Hofvander claims to insert Visser’s full
length cDNA or genomic DNA sequence coding for potato GBSS in the
antisense direction into the genome of potato plants to regulate
expression of the potato GBSS gene.
Without acknowledging that the subject matter it claims
would have been prima facie obvious in view of Hergersberg’s
teachings, Visser argues that “Visser’s claims are patentable
over Hergersberg, inter alia, because Visser has achieved an
unexpected result” (VB 25). Faced with Visser’s main arguments
that (1) no interference-in-fact exists between its claimed
constructs comprising full length cDNA or genomic DNA sequence
coding for potato GBSS in the antisense direction and Hofvander’s
claimed constructs comprising a fragment selected from the group
consisting of SEQ ID No. 1, SEQ ID No. 2 or SEQ ID No. 3 in the
antisense direction, and (2) the subject matter Hofvander claims
would have been obvious in view of Hergersberg’s teaching, we
first consider whether Hofvander’s claims would have been prima
facie obvious in view of Hergersberg’s teaching.
The evidence of record appears to show that Hofvander’s
342 bp SEQ ID No. 1 is a genomic DNA fragment of the promoter
region of the GBSS gene found primarily outside the coding region
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