Interference 103,781
to Count 2 require enhanced expression of the synthetic Bt gene
encoding said Bt insecticidal protein in a plant transformed by
said synthetic Bt gene. We interpret the phrases “modifying a .
. . gene . . . to enhance the expression of said [insecticidal]
protein in plants” (Claim 3 of Fischhoff’s involved application),
“designing a . . . gene to be more highly expressed in plants”
(Claim 39 of Fischhoff’ involved application), “synthetic gene
. . . which is more highly expressed in plants” (Claim 40 of
Fischhoff’s involved application), “method of designing a
synthetic . . . gene to be more highly expressed in plants”
(Claims 1 and 11 of Adang’s involved patent), “method of
improving the expression of a dicot plant of a . . . delta-
endotoxin protein” (Claim 1 of Barton’s involved application),
and “method of designing a synthetic . . . gene to be more highly
expressed in plants” (Claims 20 and 21 of Barton’s involved
application), as functional limitations of the synthetic Bt genes
encoding the insecticidal Bt protein defined by the claims in
which the phrases appear. Our conclusion is consistent with the
interpretation of functional language in claims of related and
commonly owned Adang et al., U.S. Patent 5,567,600, issued
October 22, 1996, Adang et al, U.S. Patent 5,567,862, issued
October 22, 1996, and their parent, Adang’s involved U.S. Patent
5,380,831, issued January 10, 1995, in Mycogen Plant Sci., Inc.
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