Interference No. 105,041 Paper 26
Syngenta Participations AG v. Bayer CropScience GmbH Page 5
cross-pollination (hybridization) when conditionally female fertile. There are
some fruit plants which are monocotyledonous, such as banana, pineapple and I
believe cassava and/or mango. There are other issued patents which are drawn to
this concept, including Oliver et al, 5,723,765, column 6, lines 30-35. (Oliver uses
a different coding sequence, and also employs genes encoding site-specific
recombinases). Another use of female sterility that I can think of is the production
of flowers which do not set seed in ornamental crops, so that all of the plant's
energy can be devoted to producing flowers, and so that flowering will continue
throughout the season (as opposed to having flowering stop after seed-filled fruit
are formed). The Harper specification (6392123) does not appear to have literal
basis for alternate uses of the plant, but they are art-recognized.
[20] The opinion of David Fox, a primary examiner in the relevant art, is reasonable and greatly
appreciated.
DISCUSSION
As a consequence of this decision, Syngenta will not be entitled to claims drawn to the
same invention as the subject matter of the count. 35 U.S.C. 135(a). Similarly, Syngenta would
not be entitled to obvious variants of the subject matter of the count. In re Deckler, 977 F.2d
1449, 1452, 24 USPQ2d 1448, 1449 (Fed. Cir. 1992). In view of the evidence from
Dr. Wernsman and the opinion of the examiner, we determine that the Syngenta interplanting
claims are patentably distinct from the subject matter of the count. In view of this determination
it is appropriate to redesignate claims 43-51, 56, 94-102, and 107 of the Syngenta application as
not corresponding to the count. The joint motion is GRANTED.
The joint motion having been granted, the contingency for Syngenta's request for adverse
judgment is met.
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