Interference 103,579
other factors are involved. Having considered the evidence in
the art up to its submission for publication, Kuipers’ 1995
publication generally concludes that “antisense RNA-mediated
inhibition of the expression of the GBSS gene offers good
prospects for the production of amylose-free tuber starch in
potato cultivars” (VDX 4, p. 754 [sic 753], col. 1, last para.,
last sentence; emphasis added).
Here, as in In re Dow Chem. Co., 837 F.2d at 473, 5 USPQ2d
at 1532:
There must be a reason or suggestion in the art for
selecting the procedure [employing the DNA sequence
in the antisense direction that the other party] used,
other than the knowledge learned from the . . . [other
party’s] disclosure. . . . . Of the many scientific
publications cited . . . none suggests that any [other]
process could be used successfully . . . to produce
this product having the desired properties.
Absent any reason or suggestion in the prior art to use the
constructs comprising the DNA sequences of distinct chemical
structure in the antisense direction which the other party
inserted into the genome of a potato plant to inhibit PGBSS gene
expression in the potato plant with reasonable expectation of
success, the claimed inventions of each party to this
interference remain prima facie separately patentable over the
claimed inventions of the other party to this interference based
on the patentably distinct chemical structures of the DNA
-120-
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