Appeal No. 2005-1164 Page 9
Application No. 09/721,131
showing that one of ordinary skill in the art would reasonably doubt the asserted
utility, the burden shifts to the applicant to submit evidence sufficient to convince
such a person of the invention’s asserted utility. Id.
We now consider the evidence of record that is in favor of appellant’s
claimed invention. The prophetic examples set forth in appellant’s specification
(pages 13-17) are insufficient to rebut the evidence relied upon by the examiner
to demonstrate that the amount of NaCl required to dissociate an HIV particle
from a T-cell7, or disrupt an HIV particle, exceeds the circulating level (0.05 µM to
about 1.0 µM) of NaCl appellant proposes to maintain in the human being
treated. Accordingly, we do not find appellant’s prophetic examples persuasive.
We recognize appellant’s reliance (see e.g., Brief, bridging paragraph,
pages 10-11) on a number of “research studies” which the examiner attaches to
the Answer as Exhibit B. However, as appellant admits (Brief, page 11), “[t]he
research studies do not address the nutrients, sodium chloride and potassium….”
Accordingly, we do not find this evidence persuasive.
We are also not persuaded by appellant’s reliance (Brief, page 6) on the
Merck brochure8 entitled “Livin’ It” 9, which the examiner finds (Answer, page 6,
footnote omitted), “does not provide evidence that administration of sodium
chloride as claimed would be effective in alleviating HIV infection or otherwise
show that sodium chloride would act to disrupt the smaller HIV [particle].”
7 Note, there is no evidence on this record to demonstrate that the concentration of NaCl required
to dissociate an HIV particle from the chromatography resin as taught by Hrinda would be
different than the concentration of NaCl required to dissociate an HIV particle from a T-cell.
8 Attached to the Answer as Exhibit A.
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