Interference 103,781
Accordingly, we are not bound in this interference by the
conclusion of our reviewing court in Mycogen Plant Sci., Inc. v.
Monsanto Co., 252 F.3d at 1314, 58 USPQ2d at 1897, that the
evidence before the District Court for the Southern District of
California was insufficient to support a finding that Fischhoff
conceived of the invention of Claim 1 or 11 of Adang’s involved
U.S. Patent 5,380,831 by October 1986, for purposes of summary
judgment. While Count 2 of this interference is indeed
alternatively directed to Claims 1-12 of Adang’s involved U.S.
Patent 5,380,831, it also is alternatively directed to Claims 3,
5, and 39-40 of Fischhoff’s involved U.S. Application 08/434,105,
filed May 3, 1995, or any of Barton’s pending claims.
Fischhoff argues (FPB 125):
The evidence now of record in this interference
establishes that Fischhoff conceived of subject matter
of Count 2 at least as early as October 30, 1986 when
Dr. Fischhoff prepared a written memorandum setting out
the inventors’ plans for modifying the “native” (wild-type)
Bt insecticidal protein structural gene sequences in order
to enhance protein expression in plants.
We proceed to consider whether the evidence of record in this
interference warrants our finding that Fischhoff conceived of the
invention of Count 2 no later than October 30, 1986.
Fischhoff points to a written memorandum as the primary
support for its testimonial evidence that it conceived of the
invention of Count 2 of this interference no later than
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