Interference 103,781
are instructed by In re Deuel, 51 F.3d 1552, 1559, 34 USPQ2d
1210, 1216 (Fed. Cir. 1995):
The fact that one can conceive a general process in
advance for preparing an undefined compound does not
mean that a claimed specific compound was precisely
envisioned and therefore obvious.
Similarly, while method Claims 1 and 7 of Barton’s involved
application incorporate a codon preference or usage table, they
remain general methods with little or no guidance or direction
toward any of the particular species of Adang’s Claims 13-14 or
Fischhoff’s Claims 41-43. Claim 1 of Barton’s involved
application includes the following steps (Fischhoff’s Priority
Brief (Paper No. 243), p. 158 (FPB 158)(emphasis added)):
(a) analyzing the pattern of nucleotide codon
usage in native plant genes having relatively high levels
of expression in plants to select from among the codons
coding for the same amino acid the codons for each amino
acid which are utilized preferentially by the native
plant genes;
(b) synthesizing a chimeric nucleotide coding
sequence coding for the expression of the amino acid
sequence of the delta-endotoxin from Bacillus thuringiensis
with the chimeric coding sequence comprising codons
differing from those in the coding sequence in Bacillus
thuringiensis and selected from among the codons determined
from Figure 1 to be preferentially utilized by the native
plant gene . . . .
Claim 7 of Barton’s involved application reads (FPB 159):
7. A method as claimed in Claim 1 wherein the
codons determined to be preferentially expressed in
plants disproportionately those codons which have a
C or a G nucleotide in the third position in the codon
in preference to an A or a T.
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