Interference 103,781
number of codons preferred by the intended plant
host than did said coding sequence.
In Mycogen Plant Sci., Inc. v. Monsanto Co., 243 F.3d 1316, 1330,
58 USPQ2d 1030, 1041 (Fed. Cir. 2001), the Federal Circuit
concluded that the Delaware district court’s claim construction
regarding the limitation “greater number of codons preferred” was
correct. Accordingly, the modification step must “result in a
higher number of those codons whose frequency in the native Bt
gene was lower than their frequency in the plant host.” Mycogen
Plant Sci., Inc. v. Monsanto Co., 243 F.3d at 1330, 58 USPQ2d
at 1041 (emphasis original). However, Claim 11 of Adang’s
involved patent is not so limited. Claim 11 reads:
11. A method of designing a synthetic Bacillus
thuringiensis gene to be more highly expressed in plants,
comprising the steps of:
[a] analyzing the coding sequence of a gene derived
from a Bacillus thuringiensis which encodes an
insecticidal protein toxin, and
[b] modifying a portion of said coding sequence to
yield a modified sequence which has a frequency of
codon usage which more closely resembles the frequency
of codon usage of the plant in which it is to be
expressed.
While the Federal Circuit appeared to accept the Delaware
district court’s interpretation that a “‘preferred codon’ . . .
[is] any codon that brings the modified Bt gene’s codon frequency
closer to that of the intended plant host,” Mycogen Plant Sci.,
Inc. v. Monsanto Co., 243 F.3d at 1328, 58 USPQ2d at 1039, the
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