Interference 103,781
evidence before it, evidence also of record in this interference,
the court stated at 243 F.3d at 1335, 58 USPQ2d at 1045:
“The parties do not dispute, and the record shows, that
Fischhoff and Perlak at Monsanto designed, built and
tested synthetic Bt genes that contained the structure
claimed in Mycogen’s patents before Mycogen filed its
patent applications on September 9, 1988.” Mycogen
[Plant Science, Inc. v. Monsanto Co.], 61 F.Supp.2d [199]
at 239 [(D. Del. 1999)]. The evidence of record shows
that Monsanto’s synthetic Bt genes were inserted into
plants, which were then grown and successfully tested
for increased Bt expression in early- to mid-August 1988.
Id. at 222.
With regard to the structural and procedural limitations of the
claims defining Mycogen’s invention, the Federal Circuit
explained, 243 F.3d at 1335, 58 USPQ2d at 1046:
Mycogen does not dispute that the genes and
resulting plants created and successfully tested by
Monsanto’s scientists prior to Mycogen’s date of
constructive reduction to practice met all of the
limitations of the product claims of the ‘600 and ‘862
patents. Nor does Mycogen dispute that the methods
employed by Monsanto’s scientists to make these genes
and plants met the limitations of the process claims
of the ‘600 and ‘862 patents.
The Federal Circuit recognized the functional limitations on the
synthetic genes in the claims defining Mycogen’s invention.
Accordingly, it declined to grant Monsanto a date of actual
reduction to practice prior to its successful testing for
“increased Bt expression in early- to mid-August 1988" (243 F.3d
at 1335, 58 USPQ2d at 1045), based on evidence nunc pro tunc
(243 F.3d at 1335, 58 USPQ2d at 1046):
-60-
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