Interference 103,781
than December 29, 1987. That is the date when synthetic Bt genes
designed and ordered by Drs. Perlak and Fischhoff no earlier than
September 8, 1987, were first constructed in accordance with the
method of Claim 3 of Fischhoff’s involved application and Count 2
(FPB 125 (Paper No. 243)). Fischhoff argues that its inventors
directed the synthetic Bt genes, “including a synthetic fully
modified gene designed on September 8, 1987 and specifically
noted to include plant-preferred codons)” (FPB 125), to be
introduced “into plants, resulting in enhanced Bt protein
expression that was observed at least as early as August 10, 1988
when the transformed plants had grown up” (FPB 125).
To decide whether Fischhoff has satisfied its initial burden
to establish by clear and convincing evidence that it reduced an
embodiment of Count 2 to practice prior to September 9, 1988, the
earliest priority benefit date accorded Adang’s involved patent,
we need determine whether the evidence of record clearly and
convincingly shows that at least one synthetic Bt gene designed
by Fischhoff’s inventors on or about September 8, 1987 (FPB 125),
satisfies all the limitations of a modified Bt gene of a
composition claim designated as corresponding to Count 2 or a Bt
gene modified in accordance with all the limitations of a method
claim designated as corresponding to Count 2, and the modified Bt
gene worked for its intended purpose. See Mycogen Plant Sci.,
-55-
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