Interference 103,781
Barton v. Adang, 162 F.3d 1140, 1146, 49 USPQ2d 1128, 1134 (Fed.
Cir. 1998)(Paper No. 118, Exhibit A).
Subsequently, the Federal Circuit entered in quick
succession three decisions on appeal of judgments of the U.S.
district courts of Delaware (2) and Southern California in
actions for infringement of three Adang patents (U.S. Patents
5,567,862 and 5,567,600 (Mycogen Plant Sci., Inc. v. Monsanto
Co., 243 F.3d 1316, 58 USPQ2d 1030 (Fed. Cir. 2001)(Delaware I);
and involved 5,380,831 (Mycogen Plant Sci., Inc. v. Monsanto,
Inc., 252 F.3d 1306, 58 USPQ2d 1891 (Fed. Cir. 2001)
(Delaware II)); and one Fischhoff patent (U.S. Patent 5,500,365
(Monsanto Co. v. Mycogen Plant Science, Inc., 261 F.3d 1356,
59 USPQ2d 1930 (Fed. Cir. 2001)(Delaware II); all appeals
involving Barton, Fischhoff and Adang and/or their assignees.
Only in Delaware II had Barton been determined to be first to
invent subject matter also claimed by Fischhoff. However, the
subject matter at issue in Delaware II was narrowly defined by
Claims 7-9 and 12 of Fischhoff’s U.S. Patent 5,500,365 and did
not include Claims 4-6 and 11 of the same patent. Claims 7-9 and
12 of Fischhoff’s patent are drawn to modified chimeric genes,
and plants transformed by modified chimeric genes, comprising a
structural coding sequence modified to contain “at least one
fewer sequence selected from the group consisting of an AACCAA
-178-
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