Interference 103,781
plants grown from plant cells transformed by its modified Bt gene
encoding insecticidal protein and tested for expression thereof
showed insecticidal Bt protein production in amounts higher
than produced by plants transformed by the native Bt gene.
See the arguments on pages 143 to 152 of Fischhoff’s Priority
Brief (FPB 143-152), the material facts Fischhoff relied upon,
and the citations to the record in support of those material
facts. We find, consistent with Mycogen Plant Sci., Inc. v.
Monsanto Co., 243 F.3d at 1335, 58 USPQ2d at 1045, a legally
sufficient evidentiary basis to conclude that Fischhoff actually
reduced an invention of Claim 1 of Adang’s U.S. Patent 5,380,831
corresponding to Count 2 of this interference to practice prior
to September 9, 1988.
II. Fischhoff’ Date Of Conception
In that Fischhoff has established that it actually reduced
the invention of Count 2 to practice before the earliest filing
date accorded the subject matter claimed in Senior Party Adang’s
involved U.S. Patent 5,380,831 for purposes of establishing
priority of invention, i.e., the September 9, 1988, filing date
of Adang’s grandparent Application 07/242,484, Adang still may
show that it was first to invent the subject matter of Count 2 by
showing:
. . . either that he was first to reduce the invention to
practice or that he was first to conceive the invention and
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