Interference 103,781
Having considered the Federal Circuit’s (1) conclusions on
review of the decisions of the Delaware and Southern California
district courts and supporting opinions, and (2) the evidence of
record in each of the district court proceedings upon which
conclusions of law were based, we necessarily find, as did the
Federal Circuit in Mycogen Plant Sci., Inc. v. Monsanto Co.,
252 F.3d at 1311, 58 USPQ2d at 1895, that “Monsanto also reduced
the two-step invention of the ‘831 patent to practice before
September 9, 1988." See Mycogen Plant Sci., Inc. v. Monsanto
Co., 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.
It is unnecessary to identify the precise date Fischhoff
actually reduced an embodiment of Claim 1 of Adang’s involved
U.S. Patent 5,380,831 to practice “in early- to mid-August 1988."
It is sufficient that the date is earlier than September 9, 1988.
Nevertheless, all of Monsanto’s testimonial evidence and
laboratory notebooks point to August 10, 1988, as the specific
date Junior Party Fischhoff recognized and appreciated that
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