Interference 103,781
fact and conclusions of law regarding the patentability of
Claim 1 of Mycogen’s Adang et al., U.S. Patent 5,567,600, to
Claim 1 of Adang’s involved U.S. Patent 5,380,831, designated as
corresponding to Count 2 of this interference, in review of the
Southern California District Court’s findings of fact and
conclusions of law relative to the patentability of Claim 1 of
U.S. Patent 5,380,831 in Mycogen Plant Sci., Inc. v. Monsanto
Co., 252 F.3d 1306, 58 USPQ2d 1891 (Fed. Cir. 2001). At 1311,
58 USPQ2d at 1895, the court said:
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.
Similarly, a finding that Monsanto reduced the
four-step invention of the ‘600 patent to practice before
September 9, 1988 (the date on which it is undisputed
that Mycogen reduced the invention to practice),
necessarily means that Monsanto also reduced the
two-step invention of the ‘831 patent to practice
before September 9, 1988. As with claim construction,
prior invention by Monsanto was argued before the
district court and this court in Delaware I and was
critical to the judgment.
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