Interference 103,781
would not have reasonably predicted in September of 1987 that
plants would express native Bt gene sequences modified in
accordance with his own concept more than unmodified native Bt
gene sequences until test results showed “increased Bt expression
in early- to mid-August 1988." Mycogen Plant Sci., Inc. v.
Monsanto Co., 243 F.3d at 1335, 58 USPQ2d at 1045. Fischhoff
testified (MR0489, p. 2014, l. 24, to p. 2015, l. 21; emphasis
added):
Q. Dr. Fischhoff, could you predict on September 8th,
‘87 how either of these sequences would work in plants?
A. On September 8th, ‘87, we had an expectation that
genes designed by our methodology would work much better
in plants than native Bt genes.
Q. That was your goal. Had you ever put one of those
genes into plants by September 8th, ‘87?
A. We had not, by September 8th, ‘87.
Q. You had no data on September 8th, ‘87; is that right?
A. We had no data on expression in plants.
Q. And as a good scientist, you couldn’t predict how
these sequences were going to work in plants, could you?
A. Well, certainly, our aim was and our expectation
was that they would work. I don’t know if you could
characterize that was a prediction or not.
Q. I understand that. I’m asking you if you could have
predicted one sequence as compared to another how they
would work in plants on that date?
A. Assuming that the genes were not substantially changed
in what I would have called our target regions, which we
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