Interference 103,781
particularly Claim 3 of Fischhoff’s involved application,
Fischhoff points to a written memorandum purportedly dated
October 30, 1986 (FPB 126):
In a memorandum dated October 30, 1986 (MDX 1478,
1190, 1199, and 1455), Dr. Fischhoff memorialized his
discussions with Dr. Perlak, writing that the way to
achieve enhanced expression of the Bt gene was to modify
the coding sequence to remove polyadenylation sequences,
ATTTA sequences, and other A-T rich sequences, while
retaining its ability to encode the amino acid sequence
of the Bt protein. That memo specifies all the material
limitations of the Count 2 embodiment defined by Fischhoff
claim 3 and describes in detail the methods subsequently
practiced by Fischhoff to modify the Bt structural gene.
While the memo does not contain a specific statement of
use of plant-preferred codons in the course of the
modification, Drs. Perlak and Fischhoff testified they
had the use of such codons in mind when the memo was
prepared and that modifications were actually accomplished
by replacing codons of the native gene with plant-preferred
codons by site directed mutagenesis using oligonucleotides
or by synthesizing a gene from scratch, which is an
embodiment of Count 2 defined by Adang claim 1. That
memorandum became the blueprint for modifying Bt genes of
the Fischhoff invention.
Upon examination of the written memorandum itself (MDX 1478,
1190, 1199, and 1455), aside from any interpretive or colorful
testimony, we find:
(1) The documentary exhibits designated MDX 1478, 1190,
1199, and 1455 are substantially identical. Accordingly, we need
cite and discuss only MDX 1478 hereafter.
(2) MDX 1478 presents a three page document. The first
page of MDX 1478 reads as follows:
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