Appeal No. 2005-0902 Page 7
Application No. 09/529,053
Appellants argue that
McChesney shows immunosuppressive effects of leflunomide alone and
with cyclosporine in canines with kidney allograft transplants. . . . The
McChesney reference includes no experimental procedures for assessing
antiviral or antibacterial effects of leflunomide.
Clearly, then, the combined Coghlan and McChesney references provide
no suggestion whatsoever in their disclosures to those of ordinary skill in
the art that leflunomide products had been found to be effective in
inhibiting viral virion assembly or might be tested for such effects with any
reasonable expectation of success.
Appeal Brief, page 11.
Appellants’ arguments are based on an incorrect interpretation of the claim:
claim 16 does not require administering leflunomide with the expectation of obtaining an
antiviral effect. Appellants may have recognized a new benefit of administering
leflunomide to patients but claim 16 as written reads on prior art processes. See In re
Woodruff, 919 F. 2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990): “It is a
general rule that merely discovering and claiming a new benefit of an old process
cannot render the process again patentable.”
3. Weithmann and Hammer
The examiner rejected claims 22 and 23 as obvious in view of Weithmann and
Hammer. The examiner noted that Weithmann teaches treating viral disorders,
including HIV infection, by administering leflunomide at doses of 3-50 mg daily. See
col. 2, lines 4-10 and 34-37; col. 3, lines 7-10; and claim 1.
Weithmann does not teach administering leflunomide in combination with another
antiviral agent, but Hammer discloses several antiviral agents used to treat HIV
infection. See, in particular, Figure 2, which shows several reverse transcriptase
inhibitors: all of the compounds shown except didanosine are pyrimidine analogs.
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