Appeal No. 2001-0400
Application No. 08/751,624
on page 6. In fact, Heinmets discloses that methylene blue, azure blue II,
toluidine blue O, azure A, and azure B eliminated infectious virus upon
irradiation,3 while thionine, aniline blue, and azure C reduced but did not
eliminate infectivity. See id.
All of these sources of evidence support enablement by showing that
minimal experimentation would be required to practice the claimed method with
many, if not most, phenothiazine dyes. The examiner has provided no evidence
to rebut the evidence favoring enablement. We conclude that the examiner’s
position is not supported by a preponderance of the evidence in the record and
therefore reverse the rejection for non-enablement.
2. The obviousness rejection based on Heinmets
The examiner rejected claims 1-15, 19-22, 24, and 27 under 35 U.S.C.
§ 103 as obvious in view of Heinmets. The examiner notes that Heinmets
teaches inactivation of viruses in plasma using a combination of phenothiazine
dye and irradiation. The examiner acknowledges that “the claims include the
limitation of the concentration of dye is 0.5 – 2 micromolar whereas Heinmets
teaches a concentration down to 10 micromolar for the same function in Table 1
and down to 0.5 micromolar in Table 3.” Examiner’s Answer, page 5. The
examiner concludes that
[i]t would have been obvious to one of ordinary skill in the art a t the
time the invention was made to employ the same dyes as Heinmets
for the same function at a selected low concentration because
3 To be accurate, the Heinmets data show only that the treated plasma, when injected into mice,
did not kill any of the mice. The actual number of infectious viral particles was not quantified.
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