Interference 105,004 Paper 18
DeBoer v. Gordon
from each other. . . . there is ample precedent from this court
for framing the test of interference in fact in terms of whether
two sets of claims are patentably distinct from each other.”)
If either party in an interference shows that its involved
claims would have been neither anticipated nor obvious over the
other party’s involved claims, then it has established that a
precondition for an interference — that the two parties are
claiming the same patentable invention — is not met. It is then
evident that the interference was declared improvidently, and
that it should be terminated.
On the merits of the joint motion
In the present case, two experts have testified as to the
state of the art of expressing heterologous proteins in milk by
transgenic techniques as of early 1986. We find that both
Dr. Meade and Dr. Striker are qualified as experts in the field
of transgenic expression of proteins in general, and as experts
in the field of the transgenic expression of proteins in milk, in
particular. Based on their patents and publications, we find
that they were experts in and knowledgeable about the state of
that art in 1986. We therefore accept and give significant
weight to their statements that they were unaware of any example
of successful expression of a heterologous protein in a
transgenic animal prior to Gordon’s priority date (JE007, Meade
declaration at 3–4, ¶9), or, more specifically, unaware of anyone
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