Interference 103,781
the first instance whether there is a genuine issue of
material fact as to enablement based on its assessment
of the evidence presented to it in the summary judgment
proceeding.
Id. at 1310, 58 USPQ2d at 1894, the Federal Circuit explained:
We agree with the district court that collateral
estoppel requires the court to conclude that Monsanto
reduced the invention [claimed in the Mycogen’s ‘831
patent] to practice before Mycogen, and that collateral
estoppel does not resolve the question whether Mycogen
was the first to conceive and then was diligent during
the critical period. On the merits of the summary
judgment question, however, we do not agree that
Monsanto has met its burden of showing that there
are no issues of material fact regarding whether
Mycogen was the first to conceive the invention
and then diligently reduce it to practice.
August 16, 2001 - On appeal from the decision of the U.S.
District Court for the District of Delaware in Monsanto Co. v.
Mycogen Plant Science, Inc., No. 96-133-RMN (D. Del. Sept. 8,
1999), the U.S. Court of Appeals for the Federal Circuit
affirmed. Monsanto Co. v. Mycogen Plant Science, Inc., 261 F.3d
1356, 1359, 59 USPQ2d 1930, 1931 (Fed. Cir. 2001). At 1360,
59 USPQ2d at 1932, the Federal Circuit said, “Claims 7-9 and 12
are at issue . . . .” Claims 7-9 and 12 are drawn to modified
chimeric genes, and plants transformed by modified chimeric
genes, comprising a structural coding sequence modified to
contain “at least one fewer sequence selected from the group
consisting of a AACCAA and an AATTAA sequence.” Monsanto Co. v.
Mycogen Plant Science, Inc., 261 F.3d at 1360-61, 59 USPQ2d
-17-
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