Interference 103,781
couldn’t believe it. I had never seen anybody suggest
that that could be the case. I had never heard that in
scientific meetings, never seen a scientific publication
and I certainly didn’t believe it myself.
Rather, the evidence of record indicates that Fischhoff himself
was astonished by the test results for plants transformed by
native Bt gene sequences modified in accordance with a method
encompassed by Count 2 (MR0448). The magnitude of the effect was
completely unexpected.
In short, having considered the prior art as a whole,
including each of Claims 1-4, 7, and 15-22 of Barton’s U.S.
Application 07/827,906, filed January 30, 1992; Claims 3, 5,
and 39-40 of Fischhoff’s U.S. Application 08/434,105, filed
May 3, 1995; and Claims 1-12 of Adang’s U.S. Patent 5,380,831,
issued January 10, 1995, all claims designated as corresponding
to Count 2, we find that persons having ordinary skill in the art
reasonably would not have been led to make and use the particular
Bt gene sequences of Claims 13-14 of Adang’s involved patent or
Claims 41-43 of Fischhoff’s involved application with reasonable
expectation of successfully increasing expression thereof in
plants as compared to expression of the unmodified Bt gene
sequence in plants. Therefore, we conclude that species
Claims 13-14 of Adang’s involved patent and Claims 41-43 of
Fischhoff’s involved application are directed to separate
patentable inventions from all of the parties’ other claims
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