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Adang v. Fischhoff

Applicant's 1986 disclosure of genetic modification to create insect toxicity in tobacco plants was not enabling as to claim for tomato plants where, at that time, skilled practitioner would have required undue experimentation to utilize process in tomato species.

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Appellants seek review of the final decision of the Board of Patent Appeals and Interferences (the “Board”) in Interference 103,324 construing Count 1 and, based on this count construction, finding Application 06/848,733, filed on April 4, 1986, by Dr. Michael J. Adang and Dr. John D. Kemp (collectively “Adang”), to be nonenabling, and finding that Adang had not shown actual reduction to practice prior to Fischhoff’s November 20, 1986, priority date. Fischhoff v. Adang, Interference No. 103,324 (Bd. Pat. Appeals & Interferences Sept. 29, 2000) (“Board opinion”). Because the Board erred as a matter of law in its count construction, and because Application 06/848,733 is nonenabling even under the correct count construction, and thus is not determinative on priority, we affirm in part, reverse in part, and remand to the Board for further proceedings, consistent herewith, under the correct count construction.

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