Interference 103,579
period from 1990-1992 would have relied on the teaching of
Hergersberg’s earlier published PhD Thesis at least to the extent
persons having ordinary skill in the art can rely on incipient
publications in a highly unpredictable art and the art continues
to be unpredictable. Accordingly, if the preponderance of the
evidence of record indicates that persons having ordinary skill
in the art reasonably would have expected that a DNA sequence
common to Visser’s full length potato GBSS cDNA and genomic DNA
sequences in the antisense direction and Hofvander’s 2549 bp
genomic SEQ ID No. 2 in the antisense direction is responsible
for regulating GBSS expression in a potato plant when inserted
into its genome (HB 26-32), then the art would have attained at
the time a level of predictability which not only would have
justified rejections of the subject matter Visser claims as
prima facie obvious under 35 U.S.C. § 103 in view of Hofvander’s
claims, the combined teachings of Hergersberg and van der Leij,
or a combination of Hofvander’s claims and the teachings of
Hergersberg and van der Leij, but also would have justified a
rejection of the subject matter Hofvander claims as prima facie
obvious under 35 U.S.C. § 103 in view of the combined teachings
of Hergersberg and van der Leij. On the other hand, if a
preponderance of the evidence of record indicates that the
pertinent antisense technology would have continued to be highly
unpredictable at the critical time, then we must conclude not
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