Appeal No. 95-4441
Application No. 07/970,229
example, in the case of In re Payne, 606 F.2d 303, 313, 203
USPQ 245, 254 (CCPA 1979).
More specifically, it would have been obvious for the
artisan to replace the methyl substituents of hypericin with
hydrogen, thereby yielding the compound of claims 14 and 22,
with a reasonable expectation of obtaining a compound
possessing antiviral activity. See, for example, In re
Zickendraht, 319 F.2d 225, 228, 138 USPQ 22, 25 (CCPA 1963)
and compare In re Wood, 582 F.2d 638, 641, 199 USPQ 137, 139
(CCPA 1978). The appellants’ contrary view is based on their
position that the antiviral activity under consideration “is
exceedingly evanescent” (Reply Brief, page 4) which would not
have been expected to remain in eliminating the methyl groups
of hypericin. However, we find no evidence of record in
support of this position, and the appellants point to none.
On the other hand, Lavie’s disclosure of antiviral activity
for hypericin and for pseudohypericin supports the proposition
that compounds similar in structure will have similar
properties even when the involved properties relate to
antiviral activity.
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