Interference No. 103,906
We have construed Dionne’s claims broadly to encompass a
method of treating any viral infection in a mammal. Having done
so, we held those claims to be unpatentable under 35 U.S.C.
§ 112, first paragraph, because the scope of enablement provided
by Dionne’s specification is not commensurate with the breadth of
the claims. However, even if we were to assume, arguendo, that
the claims in question are limited to treatment of infections
caused only by “HBV and retroviruses such as HIV,”6 we would
still hold Dionne’s claims unpatentable for essentially the same
reason. This is because the sole in vitro test of antiviral
activity reported in Dionne’s specification (Example 3) relates
only to a single strain of a single retrovirus (HIV-1 strain RF).
No other results are reported against any other HIV strains, let
alone against any other type of retrovirus.
According to the uncontradicted testimony of Dr. Sommadossi
(LR-198):
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. [Underlining added for emphasis.]
In view of Dr. Sommadossi’s testimony, the evidence of
6This is the construction favored by Dionne (DRB-2).
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