Interference 103,579
44 USPQ2d 1459, 1462 (Fed. Cir. 1997). Attorney argument
unsupported by factual evidence is insufficient to establish the
level of predictability in the art. In re Lindner, 457 F.2d 506,
508, 173 USPQ 356, 358 (CCPA 1972).
We presented in an earlier section of this decision the
reasons why we cannot conclude that Hofvander’s claims designated
as corresponding to the count and Visser claims designated as
corresponding to the count define the same patentable invention
based solely on factual evidence that antisense constructs
comprising the full length cDNA or genomic DNA sequence and
antisense constructs comprising fragments of the GBSS gene are
functionally equivalent when the evidence shows that the chemical
structures of the antisense DNA sequences the respective parties
utilize to (1) make and use its constructs for insertion into the
potato genome to regulate GBSS gene expression in potato plants
and formation of transgenic potato plants including said
constructs, and (2) carry out the methods of producing transgenic
potato plants transformed by said constructs which the parties
claim, are neither identical nor structurally obvious over each
other. See again In re Dillon, 919 F.2d 688, 694, 16 USPQ2d
1897, 1903 (Fed. Cir. 1990)(en banc), cert. denied, 500 U.S. 904
(1991):
The materials used in a claimed process as well as the
result obtained therefrom must be considered along with
the specific nature of the process, and the fact that
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