Interference 103,579
fragments and the use of full length sequence to suppress
amylose formation in potato to be the same patentable
invention, e.g., the use of full length sequence of the
potato GBSS gene for amylose suppression to be obvious
in view of the use of fragments of the potato GBSS gene
for amylose suppression.
(HB 28, first full para. (citing HB 4, Fact 1));
The Visser application and the Hofvander
application both support the position that the use
of full length sequences and the use of fragments in
antisense orientation to obtain essentially amylose-
free starch define the same patentable invention as
the Count of the interference. . . . . The “invention”
encompassed by the Count, the priority of which is to
be determined in this interference, describes how to
produce essentially amylose-free starch in the form
of amylopectin by introducing DNA constructs into the
genome of a potato. While the Visser application in
this interference claims the use of full length sequences
to accomplish this objective, the Hofvander application,
which has an earlier effective filing date, claims the
use of fragments to accomplish this same objective.
Because antisense constructs comprising the full length
sequence and antisense constructs comprising fragments
of the GBSS sequence are functionally equivalent, the
same patentable invention is defined by the Hofvander
and the Visser claims.
(HB 28, second full para. (citing HB 4-5, Facts 2-4); emphasis
added).
As support for its arguments, including the homologous
sequence theory presented for the first time in its brief,
Hofvander relies on the assertions of experts. However,
“[n]othing in the [Federal R]ules [of Evidence] or in . . .
[Federal Circuit] jurisprudence requires the fact finder to
credit . . . unsupported assertions of an expert witness.”
Rohm and Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092,
-102-
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