Appeal No. 95-4441
Application No. 07/970,229
Furthermore, an artisan with ordinary skill also would
have replaced the hydroxyl groups of hypericin (e.g., at the
10 and 11 positions shown by Brockmann) with simple ester
groups, thereby resulting in compounds which include the
compound of claims 17 and 23, with a reasonable expectation of
obtaining compounds which, like hypericin, possess antiviral
activity. In re Ward, 329 F.2d 1021, 1023, 141 USPQ 227, 228
(CCPA 1964). In addition to the unpersuasive argument
discussed above, the appellants urge that an obviousness
conclusion is improper because, while “OCH might be a simple
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ester of the alcohol, OCOR is not a simple ester” (Reply
Brief, page 7). The appellants are confused. Contrary to
their belief, OCH is an ether not an ester whereas the here
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claimed substituent OCOR is unquestionably a simple ester as
explained in Ward, id. at footnote 2.
Our obviousness conclusion with respect to the compounds
defined by dependent claims 14, 22 and 15, 23 mandates a
corresponding conclusion for the generic parent claims 13 and
21. Further, as mentioned earlier, the appellants have stated
that dependent claims 18 through 20, 26 and 27 will stand or
fall with their parent claims 13 and 21. It follows that we
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