Interference 103,781
to practice, without extensive research or experimentation,”
Burroughs-Wellcome Co. v. Barr Labs., 40 F.3d 1223, 1228,
32 USPQ2d 1915, 1919 (Fed. Cir. 1994).
Between December 12, 1986, and September 9, 1988, Drs. Adang
and Murray performed a variety of experiments designed to
pinpoint the region of native Bt genes which was causing
premature termination of transcription and inefficient production
of toxin in plants which had been transformed by native Bt genes
encoding insecticidal protein (AX 106E; AR 0107-0108). However,
Drs. Adang and Murray considered their “search for the region of
. . . [the native Bt genes] causing RNA instability . . .
somewhat distinct from codon usage” (AR 0107-0108; emphasis
added)). Thus, we find that a significant amount of
experimentation and effort by Drs. Adang and Murray between
December 12, 1986, and September 9, 1988, was directed to an
invention distinct from codon usage. Moreover, we hold that the
concept of “codon usage” is critical to the invention defined
by all the claims of Adang’s involved patent designated as
corresponding to the Count 2. Independent Claim 1 of Adang’s
involved U.S. Patent 5,380,831 requires modification of Bt DNA
sequences encoding insecticidal protein to include codons
preferred by plants to reflect the codon usage of the plant genes
(AR 0123-0125; AR 4154). Independent Claim 11 of Adang’s
-132-
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