Interference 103,781
and an AATTAA sequence.” Monsanto Co. v. Mycogen Plant Science,
Inc., 261 F.3d at 1360-61, 59 USPQ2d at 1932. Claims 4-6 and 11
of same patent, the subject matter of which was not at issue in
the case, are directed 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 plant polyadenylation
sequences and an ATTTA sequence” (Fischhoff’s U.S. Patent
5,500,365, cols. 45-47).
During the preliminary motion phase of this interference
proceeding without Barton, Adang had filed Preliminary Motion
No. 3 (Paper No. 47) on May 8, 1997, for judgment on the
patentability of Fischhoff’s claims designated as corresponding
to the existing count under 35 U.S.C. § 102(g)/103 and discovery
for possible evidence that Barton was first to invent the subject
matter defined by Fischhoff’s claims corresponding to the count.
Adang appointed new counsel on January 8, 2002 (Paper No. 147).
Adang’s Preliminary Motion No. 3 was denied as premature
(Paper No. 148, mailed September 4, 2002). Also redeclaring the
interference to reinstate Barton as a junior party, the APJ
ordered the parties to specify what additional preliminary
motions were required and explain why they were necessary (Paper
No. 148). In response, Adang did not ask to file or refile a
-179-
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