Appeal No. 2001-1051 Page 6
Application No. 08/185,079
represent a major advance in the prevention and treatment of viral
infections in humans and other animals.
Vonderfecht, page 2015, column 2.
Vonderfecht thus suggests that the BABIM may have a broad range of
antiviral activity. While the above teachings of Vonderfecht may have made it
obvious to try BABIM against retroviruses, in view of the statement in Tidwell that
the compounds are virus specific, and the fact that the data presented by the
Vonderfecht reference is limited to a murine rotavirus, the prior art as combined
does not provide a reasonable expectation of success that BABIM would be
effective against a retrovirus such as HIV. See In re Dow Chemical Co., 837
F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988) (noting that a
determination of obviousness not only requires that the prior art would have
suggested the claimed process to one of ordinary skill in the art, but also that the
process would have a reasonable likelihood of success when viewed in light of
the prior art).
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