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Intellectual Property Keyed to Merges
In re Fisher
Facts
Fisher (Plaintiff) submitted a patent application (the ‘643 application) that related to five purified nucleic acid sequences (genes), commonly referred to as expressed sequence tags (ESTs), that encoded proteins and protein fragments in maize plans. When Plaintiff filed the ‘643 application, he did not know the precise structure or function of either the genes or the proteins encoded for by those genes. The ‘643 application disclosed that the five claimed ESTs could be used in different ways, including: (1) serving as a molecular marker for mapping the entire maize genome, which consists of ten chromosomes that collectively encompass roughly 50,000 genes; (2) measuring the level of mRNA in a tissue sample using microarray technology to provide information about gene expression; (3) providing a source for primers for use in the polymerase chain reaction (PCR) process to enable duplication of specific genes rapidly and inexpensively; (4) identifying the presence or absence of a polymorphism; (5) isolating promoters through chromosome walking; (6) controlling protein expression; and (7) locating genetic molecules of other plants and organisms. The patent examiner found that none of the recited uses for the ESTs satisfied the “substantial utility” standard and “enablement” standard required for patentability. The Board of Appeals and Interferences affirmed, and the Federal Circuit granted review.
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