Interference No. 103,906
3. it is accepted in the field of antiviral therapy that
observation of activity against one virus, or even two viruses,
is an insufficient basis on which to reasonably predict broad
spectrum anti-viral activity, or even activity against related
viruses. (Sommadossi Declaration, para. 15: LR-198).
In contrast to the concrete and substantial evidence of
unpredictability presented by Liotta, we note that the guidance
provided in the Dionne specification is very narrow, despite the
wide breadth of the claims at issue and the unpredictability in
the field of antiviral therapy. In this regard, Dionne’s
disclosure does not name any specific viruses against which
activity is expected other than HBV or a retrovirus such as HIV.
Also, the sole working example (Example 3) in the specification
is limited to in vitro testing against one strain of HIV. Other
than this, there is some evidence of in vitro activity against
HBV as well (Declarations provided by Dr. Mansour and Dr. McDade:
LX-1).
In view of the foregoing, we hold that Liotta has
established by a preponderance of the evidence that the scope of
enablement provided by Dionne’s specification is not commensurate
with the breadth of Dionne’s claims. Thus, we conclude that
Dionne’s involved claims are unpatentable under the first
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