Appeal No. 2000-0591
Application No. 08/311,291
expect that PCV, although effective against HSV-1, HSV-2 and VZV, will be effective
against other herpesviruses, like EBV and CMV ; and (2) that acyclovir (ACV) and
gancyclovir (GCV), acyclic nucleosides structurally similar to PCV, have not been
shown to be clinically effective in treating many of the diseases associated with
herpesviruses.
Having carefully considered the record as a whole, we do not see that the
examiner has come to grips with appellants’ argument that “the herpesviruses share
many characteristics in addition to virion structure, including encoding their own viral
DNA polymerases,” and the acyclic nucleosides ACV, GCV and PCV, “inhibit the viral
DNA polymerases of herpesviruses, and thus herpesvirus replication and production
and spread of infectious herpesviruses.”6 Reply Brief, pages 5 and 6.
Moreover, we agree with appellants that “[e]nablement does not require that
PCV be equally effective against each of the different herpesviruses, nor that PCV
eradicate all of the different clinical manifestations associated with herpesvirus
infections.” Brief, page 20. The claims are directed to the treatment of herpesvirus
infection using PCV, and appellants urge that “[t]reatment of a herpesvirus infection
may encompass any effect that would reduce the production of infectious virus in an
infected individual.” Id. Appellants have presented evidence supporting their assertion
6 According to Dr. Klaus Esser, in his declaration executed July 16, 1998, “PCV,
GCV and ACV are known to work by a similar mechanism of action, each compound
being phosphorylated to the monophosphate by the viral thymidine kinase, and then
being further phosphorylated to the triphosphate form by host cell kinases. The
triphosphate form of each compound then blocks viral DNA synthesis by inhibition [sic]
the viral DNA polymerase.”
7
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