Appeal No. 1996-3866
Application 08/087,957
Adherence to this model would result in a more coherent, understandable statement of the
rejection.
In any event, the claimed method requires that the 3'-azido-3'-deoxythymidine and
methotrexate be administered within a 48 hour time period. The examiner has not
provided evidence of, and we do not find, any disclosure in Minor which would suggest
administration of 3'-azido-3'-deoxythymidine and methotrexate within a 48 hour time
period.
Minor describes administration of methotrexate as part of a chemotherapy regimen
for treatment of kaposi's sarcoma in AIDS patients on day 22 and sometime “after
chemotherapy was stopped” four patients “were begun on zidovudine”. Minor, abstract.
The abstract is ambiguous as to when AZT treatment was begun. It is mere speculation on
the part of the examiner that the AZT treatment of chemotherapy patients commenced on
day 24, one day after the chemotherapy regimen stopped on day 23, and at least two days
after treatment with methotrexate on day 22.
Conclusions of obviousness must be based upon facts not generalities. See In re
Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S.
1057 (1968); In re Freed, 425 F.2d 785, 165 USPQ 570, 571 (CCPA 1970). In the
present case the examiner has provided no conclusive fact or evidence that the
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