Interference 103,781
v. Monsanto Co., 243 F.3d 1316, 58 USPQ2d 1030 (Fed. Cir. 2001),
and Mycogen Plant Sci., Inc. v. Monsanto Co., 252 F.3d 1306,
58 USPQ2d 1891 (Fed. Cir. 2001). First, the Federal Circuit
recognized that all three Mycogen patents had common language
with related claim construction issues in Mycogen Plant Sci.,
Inc. v. Monsanto Co., 243 F.3d at 1326-27, 58 USPQ2d at 1038:
[T]he claim construction issue here relates to both
the ‘600 and the ‘862 patent, as well as the original
‘831 parent patent, as all three patents contain claims
that use the language disputed herein.
See the underlined language common to Claim 1 of Adang’s involved
patent and Claim 1 of Adang’s U.S. Patent 5,567,600 below:
1. (U.S. Patent 5,380,831) A method of designing a
synthetic Bacillus thuringiensis gene to be more highly
expressed in plants, comprising the steps of:
analyzing the coding sequence of a gene derived from a
Bacillus thuringiensis which encodes an insecticidal protein
toxin, and
modifying a portion of said coding sequence to yield a
modified sequence which contains a greater number of codons
preferred by the intended plant host than did said coding
sequence.
1. (U.S. Patent 5,567,600) A method of designing a
synthetic Bacillus thuringiensis gene to be more highly
expressed in plants, comprising the steps of:
(a) analyzing the coding sequence of a gene derived
from a Bacillus thuringiensis which encodes a pesticidal
protein toxin,
(b) modifying a portion of said coding sequence to
yield a modified sequence which contains a greater number
of codons preferred by the intended plant host than did
said coding sequence prior to modification, said
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