Appeal No. 1999-1413
Application 08/176,024
It is appellants' position that successful in vivo testing for a particular
pharmacological activity in an art accepted model (monkeys) establishes a significant
probability that in vivo testing for this particular pharmacological activity will be successful
in humans. On the facts before us, we agree.
Appellants submit that they have provided evidence of efficacy of the claimed
formulation protective against Plasmodium vivax in the most reliable and standard animal
model accepted by experts in the field for predicting the likelihood of success of the
claimed invention in humans. Substitute Brief, page 13.
Based upon the relevant evidence as a whole, we find there to be a reasonable
correlation between the disclosed in vivo utility and an in vivo activity in humans, and
therefore a rigorous correlation is not necessary where the disclosure of pharmacological
activity is reasonable based upon the probative evidence. Compare Cross v. Iizuka, 753
F.2d 1040, 224 USPQ 739 (Fed. Cir. 1985); Nelson v. Bowler, 626 F.2d 853, 856, 206
USPQ 881 (CCPA 1980). Therefore, we will not sustain the rejection of the claims for
lack of enablement.
Obviousness
Claims 1-3 stand rejected under 35 U.S.C. §103. As evidence of obviousness, the
examiner cites McCutchan (1 and 2) and Harlow.
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