Appeal No. 94-2477
Application 07/893,554
As can be seen from Table 3 of Noyes, as the dose of delta-9-THC was lowered
from 20 mg/day to 10 mg/day, the number of patients reporting increased appetite
increased, the number of patients reporting nausea increased slightly while the number
of patients reporting vomiting and diarrhea decreased. It is also seen from Table 3 that
all of the side effects classified under “Central Nervous System” decreased with the
decreased dosage of delta-9-THC.
As set forth above, appellant acknowledges that at the time of the present
invention, it was known that patients suffering from symptomatic HIV infection were
subject to loss of appetite with consequent loss of weight.
From this factual background, we conclude that one of ordinary skill in the art
would have found it prima facie obvious to treat patients having symptomatic HIV
infection by orally administering delta-9-THC. One of ordinary skill in the art would have
reasonably expected that administering this compound to patients suffering from
symptomatic HIV infection would result in increased appetite as was observed by
Noyes when this compound was administered to patients suffering from advanced
cancer.
In reaching this conclusion, we recognize that the lowest amount administered
by Noyes was 10 mg/day while the claims on appeal require 5.0 mg/day. However, it
has been held that “discovery of an optimum value of a result effective variable in a
known process is ordinarily within the skill of the art.” In re Boesch, 671 F.2d 272, 276,
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