Appeal No. 1999-2523 Page 4
Application No. 08/475,791
attempted in the art by steroids such as dexamethasone and prednisolone and
then advocates the use of cyclic imides in combination with steroids.” Based on
this evidence the examiner concludes (id.) that the “inclusion of NFKB inhibitors
such as dexamethasone and prednisolone in the teachings of Malfroy-Camine,
with the expectation of obtaining at least an additional effect, … would have
been obvious to an artisan [at the time the invention was made], if the disease to
be treated is a retro[-]viral infection.”
In response, appellant argues (Brief, page 6) that Malfroy-Camine “merely
provide a list of ingredients, any of which may or may not be administered in
combination, with at least one species of antioxidant salen-metal complex.”
Appellant finds (Brief, pages 6-7) that following the disclosure of Malfroy-Camine
“one may try” eight different categories of compositions of which only two:
may contain one of the recited agents for raising blood glutathione
levels, an additional antioxidant, and an NFKB induction inhibitor,
but only if the selected one or more free radical scavengers include
an agent selected from the group of compounds listed under (i) of
[appellant’s] claim 57 and only if the selected one or more
oxyradical inhibitors includes an anti-inflammatory steroid or a
nonglucocorticoid lazaroid.
Appellant finds (Brief, page 8), that since Malfroy-Camine’s specification
provides no guidance in the selection of appropriate or suitable active ingredients
for compositions useful in the treatment of disease, “it would only be by chance
that one having ordinary skill in the art would select a composition containing a
free radical scavenger which increases blood glutathione levels and an
oxyradical inhibitor which is an anti-inflammatory steroid or a nonglucocoirticoid
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