Interference 103,781
Based on a more complete consideration of Dr. Murray’s
testimony, we cannot agree with Adang’s statement that, “As
early as October/November 1985, Dr. Murray believed that
polyadenylation signals were involved with the low Bt expression
problem” (AB 49, Fact 115). Nor can we find that Dr. Murray
believed that polyadenylation signals were involved with the low
Bt expression problem in 1986. Rather, we find that in 1986,
Dr. Murray believed it possible that polyadenylation signals were
involved with the low Bt expression problem. That possibility is
not a description of that part of the invention of Claim 3 of
Fischhoff’s involved application which requires modification of a
wild-type structural gene sequence which encodes an insecticidal
protein of Bacillus thuringiensis to enhance the expression of
said protein in plants which comprises removing polyadenylation
signals contained in said wild-type gene while retaining a
sequence which encodes said protein in “sufficiently final form
that only the exercise of ordinary skill remained to reduce it to
practice.” Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d
at 1231, 32 USPQ2d at 1922. Rather, the evidence shows that
Adang’s search for the cause of premature termination of
transcription and inefficient expression of the native Bt gene
encoding insecticidal protein in plants transformed thereby
continued well into 1988.
-141-
Page: Previous 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 Next
Last modified: November 3, 2007