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In re Fisher

United States Court of Appeals for the Federal Circuit
421 F.3d 1365 (Fed. Cir. 2005)



Dane Fisher and a colleague (collectively “Fisher”) (plaintiff) submitted their ‘643 patent application related to five gene sequences, referred to as “expressed sequence tags,” (“ESTs”), which encoded proteins in maize plants. The ‘643 application disclosed that the five ESTs could be used in (1) serving as a molecular marker for mapping the entire maize genome, (2) measuring the level of mRNA in a tissue sample via 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, (4) identifying the presence or absence of a polymorphism, (5) isolating promoters via chromosome walking, (6) controlling protein expression, and (7) locating genetic molecules of other plants and organisms. The application examiner rejected Fisher’s claims for lack of utility under 35 U.S.C. § 101. Fisher appealed to the U.S. Patent and Trademark Office’s (“PTO”) Board of Patent Appeals and Interferences (“Board”), which affirmed the examiner’s rejection. Fisher appealed.

Rule of Law


Holding and Reasoning (Michel, J.)

Dissent (Rader, J.)

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