Appeal No. 1998-2010
Application No. 08/542,861
use the claimed compounds using the assays of examples 13 and 14, and fails to clearly
show that the claimed compounds possess the claimed retroviral protease inhibitory
activity. The specification fails to show that the claimed compounds are useful as
inhibitors of any retroviral proteases, including HIV protease or other of the varied and
multiple retroviral proteases, and thus, fails to show that the claimed compounds can be
used in a method for treating retroviral infections, generally. The specification and the
record, also fail to establish with any evidence that the claimed compounds can be
successfully used in a method of treating AIDS, as claimed. The examiner has provided
sufficient evidence of the unpredictability in the art of retroviral protease inhibitors.
Appellants argue that, contrary to the examiner's reading of Kayegama, Kayegama
supports their position that protease inhibitors are known in the art to be useful as antiviral
drugs, supporting enablement of the claimed compounds. Reply Brief, page 15.
Appellants have failed, however, to establish that the compounds of Kayegama are
structurally and functionally similar to the claimed compounds in a manner which would
support enablement of the claimed compounds.
Similarly, although appellants suggest that several companies have protease
inhibitor compounds in clinical trials (Brief, page 16), we agree with the examiner that
appellants have failed to show that the compounds used in the clinical trials are related and
13
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