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Patent Law Keyed to Adelman
In re Fisher
Facts
Plaintiff submitted a patent application (the '643 application) that related to five purified nucleic acid sequences (genes), also known as expressed sequence tags (ESTs), that encoded proteins and protein fragments in maize plants. 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 a variety of ways. These included: (1) serving as a molecular marker for mapping the entire maize genome, which consists of ten chromosomes that together include about 50,000 genes; (2) measuring the level of mRNA in a tissue sample by way of 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 rapid and inexpensive duplication of specific genes; (4) identifying the presence or absence of a polymorphism; (5) isolating promoters by way of chromosome walking; (6) controlling protein expression; and (7) locating genetic molecules of other plants and organisms. The patent examiner found that none of the stated uses for the ESTs satisfied the "substantial utility" standard and "enablement" standard required for patentability. The board of appeals and interferences affirmed, and the court of appeals granted review.
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