Interference 103,579
Accordingly, we need not consider whether “Hofvander has clearly
shown that the use of fragments and the use of full length
sequence both achieve essentially complete suppression/inhibition
of the GBSS gene and thus both produce essentially amylose-free
starch” (HB 27, first full para.). We conclude that the distinct
chemical structures of the fragments defined by, and used in,
Hofvander’s claims and the full length PGBSS cDNA or genomic DNA
sequences defined by, and used in, Visser’s claims, render the
subject matter Hofvander claims separately patentable from the
subject matter Visser claims. Contrary to Hofvander’s view
(HB 28, last sentence), Hofvander’s and Visser’s claims do not
define the same patentable invention even if antisense constructs
comprising Visser’s full length GBSS cDNA and genomic DNA
sequences and antisense constructs comprising Hofvander’s
fragments of the PGBSS gene are in fact functionally equivalent
for suppressing PGBSS expression.
We cannot disregard the distinct chemical structures of the
compounds recited in Hofvander’s and Visser’s claims. All claim
limitations must be considered when determining the patentability
of an invention over the prior art. In re Lowry, 32 F.3d 1579,
1582, 32 USPQ2d 1031, 1034 (Fed. Cir. 1994).
Therefore:
We grant Visser’s Preliminary Motion No. 1 under 37 CFR
§ 1.633(b) for judgment that there is no interference in fact
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