Interference 103,579
sequences each party’s claims describe for insertion into the
genome of the potato plant in the antisense direction.
Visser has established at least that the parties’ claims
prima facie are drawn to separate patentable inventions based on
their comparatively separate and distinct chemical structures.
Thus, the burden has been shifted to Hofvander to show that the
inventions the parties claim are directed to the same patentable
invention. Hofvander has not satisfied its burden.
Contrary to the views expressed in Hofvander’s Main
Brief at Final Hearing (HB 1, first para.), we conclude that
the invention defined by Hofvander’s claims designated as
corresponding to the count and the invention defined by Visser’s
claims designated as corresponding to the count are not directed
to obtaining amylose-free starch by suppressing/inhibiting the
GBSS gene by use of any effective antisense construct. Rather,
we conclude that the invention of Hofvander’s claims designated
as corresponding to the count and the invention of Visser’s
claims designated as corresponding to the count are directed to
very specific antisense constructs and methods of using very
specific antisense constructs to obtain amylose-free starch by
suppressing/inhibiting the GBSS gene. None of Hofvander’s or
Visser’s claims designated as corresponding to the count are
generally directed to the successful use of antisense technology
to suppress/inhibit expression of the GBSS gene in potato plants.
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