Interference 103,781
court recognized that there is a distinction between the
limitations in the modification steps of Claims 1 and 11 of
Adang’s involved patent. At final hearing, Adang focused on the
subject matter defined by Claim 1 of it involved patent.
Nevertheless, it is important to understand the relationship
between the “number of codons preferred” and “frequency of codon
usage” in Claims 1 and 11 of Adang’s involved patent to finally
determine whether Adang’s focus and the evidence upon which it
relies shows prior conception of the invention of Count 2, which
Claims 1 and 11 alternatively define. Significantly, Adang’s
involved patent specification teaches that codon preferences in
Bt relative to plants are critical to conception of the invention
of Count 2 of this interference, whether represented by Claim 1
or Claim 11 of Adang’s involved patent. Adang’s U.S. Patent
5,380,831 teaches at column 7, lines 3-19:
To determine the frequency of usage of a particular
codon in a gene, the number of occurrences of that codon
in the gene is divided by the total number of occurrences
of all codons specifying the same amino acid in the gene.
Table 1, for example, gives the frequency of codon usage for
Bt genes, which was obtained by analysis of four Bt genes
whose sequences are publicly available. Similarly, the
frequency of preferred codon usage exhibited by a host cell
can be calculated by averaging frequency of preferred codon
usage in a large number of genes expressed by the host cell.
It is preferable that this analysis be limited to genes that
are highly expressed by the host cell. Table 1 . . . for
example, gives the frequency of codon usage by highly
expressed genes exhibited by dicotyledonous plants, and
monocotyledonous plants.
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