Interference 103,781
terminating . . . [and] we could . . . site specifically
mutagenize the premature termination region of the Bt gene”
(AX 101B) and “for efficient expression of this toxin in tobacco
plants the coding sequence must be modified to eliminate
premature termination of transcription” (AX 106E, p. 2). That
concept does not recognize all the features and/or limitations of
Claim 1 of Adang’s involved patent or corresponding Count 2.
Specifically, we find in these passages no recognition of the
need for plant-preferred codons.
According to Fact 36, Drs. Adang and Murray “reached the
conclusion that the Bt DNA sequence was causing instability of
the mRNA in plants” (AB 10, Fact 36). Fischhoff does not appear
to deny the truth of the statement. Nevertheless, even assuming
its truth, that conclusion does not support its alleged
conception of the invention of Claim 1 of Adang’s involved patent
or Count 2 prior to December 12, 1986. Adang cites the following
testimony of Dr. Adang in the District Court of Southern
California in support of Fact 36 (AR 0089, l. 25, to AR90,
l. 12):
Liz did northern blots that identified truncated
transcripts in Bt transgenic plants. So Liz was aware
of the problem. And as I recall, Liz and I both started
chatting about and discussing what might be wrong.
. . . I almost think we had sort of a mutual coming
together of our backgrounds and insights to come up with
-101-
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