Appeal No. 95-4791
Application 08/034,849
evidence of success in treating virus infections that the
examiner presents relates to the topical treatment of herpes
simplex or zoster. In short, the prior art does not
adequately support its broad allegations that viral infections
as a whole and, more specifically, infection by the HIV virus,
can be treated by intravenous administration of stabilized
chlorite solutions. The prior art applied against the
appealed claims creates no more than an “obvious-to-try”
situation. See In re Eli Lilly & Co., 902 F.2d 943, 945, 14
USPQ2d 1741, 1743 (Fed. Cir. 1990):
An “obvious-to-try” situation exists when a general
disclosure may pique the scientist’s curiosity, such that
further investigation might be done as a result of the
disclosure, but the disclosure itself does not contain a
sufficient teaching of how to obtain the desired result,
or that the claimed result would be obtained if certain
directions were pursued. See generally In re O’Farrell,
853 F.2d 894, 903, 7 USPQ2d 1673, 1681 (Fed. Cir. 1988)
(defining obvious-to-try as when prior art gives “only
general guidance as to the particular form of the claimed
invention or how to achieve it”).
Second, Kuhne II, U.S. 4,507,285 (incorporated by
reference in this application), and the teaching of EP-200,155
summarized at page 2 of this specification, reasonably would
have suggested that stabilized chlorite solutions act to
inhibit infections by stimulating macrophage and phagocyte
activity, activity generally associated with bacterial
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