Interference 103,781
modification comprising reducing the number codons
having CG in codon positions II and III in a region
between plant polyadenylation signals in said coding
sequence;
(c) inserting said modified sequence into the genome
of a plant cell; and
(d) maintaining said plant cell under conditions
suitable to allow replication of said plant cell to produce
additional plant cells having said modified sequence in
the genome of said additional plant cells, wherein said
synthetic Bacillus thuringiensis gene is expressed to
produce a pesticidal protein toxin.
Having compared the same two claims, the court said in
Mycogen Plant Sci., Inc. v. Monsanto Co., 252 F.3d at 1311,
58 USPQ2d at 1895:
The two steps recited in claim 1 of the ‘831 patent
are also found in claim 1 of the ‘600 patent. The two
claims differ in that claim 1 of the ‘600 patent includes
two further steps in addition to the two steps that are
common to both claims, and it also includes additional
limitations requiring removal of a number of codons having
the nucleotide bases guanine and cytosine (GC) in codon
positions II and III.
With respect to claim construction, the terms of the
claims of the ‘831 patent must be construed consistently
with the same terms in the ‘600 patent. Claim construction
was litigated in Delaware I before both the district
court and this court, and determination of that issue
was necessary to the judgment in that case.
In Mycogen Plant Sci., Inc. v. Monsanto Co., 243 F.3d 1316,
58 USPQ2d 1030 (Fed. Cir. 2001), the patentability of the subject
matter defined by Claim 1 of Adang et al., U.S. Patent 5,567,600,
under 35 U.S.C. § 102(g)/103 was at issue. Considering the
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