Interference 103,781
162 F.3d 1140, 49 USPQ2d 1128 (Fed. Cir. 1998); Mycogen Plant
Sci., Inc. v. Monsanto Co., 243 F.3d 1316, 58 USPQ2d 1030 (Fed.
Cir. 2001) (Delaware I); Mycogen Plant Sci., Inc. v. Monsanto,
Inc., 252 F.3d 1306, 58 USPQ2d 1891 (Fed. Cir. 2001); and
Monsanto Co. v. Mycogen Plant Science, Inc., 261 F.3d 1356,
59 USPQ2d 1930 (Fed. Cir. 2001)(Delaware II); and Adang knew
that Claims 7-9 and 12 of Fischhoff’s noninvolved U.S. Patent
5,500,365, were the only claims at issue in Delaware II and were
limited to modified chimeric genes comprising a structural coding
sequence modified to contain “at least one fewer sequence
selected from the group consisting of an AACCAA and an AATTAA
sequence.” Adang was also on notice that the subject matter
defined by new Count 2 of this interference was far broader in
scope than the subject matter encompassed by Claims 7-9 and 12 of
Fischhoff’s U.S. Patent 5,500,365.
After Fischhoff filed Monsanto Election pursuant to 37 CFR
§ 1.602(a) designating “Junior Party Fischhoff et al. as first to
invent, vis-a-vis the Junior Party Barton et al., the subject
matter defined by Count 2" and the statement of intent not to
submit “any further documents in this interference on behalf of
the Junior Party Barton” (Paper No. 182) on July 18, 2003, Adang
then filed its Request For Authorization To Address The
Unpatentability Of Fischhoff’s Claims [under 35 U.S.C. § 102(g)
-185-
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