Appeal No. 2001-0992 Page 3
Application No. 08/527,880
been motivated to employ conventional NHL therapies to AIDS-associated NHL;
enjoying a reasonable expectation of therapeutic success.”
In response, appellants argue (Brief, page 2), “that AIDS-NHL is
recognized by the medical community as being different from all other
lymphomas including non-AIDS non-Hodgkins Lymphoma (NHL).” To support
their position appellants quote passages (Brief, pages 3-6, and Reply Brief, page
9) from a number of literature references. For example, at page 9 of their Reply
Brief, appellants report the following:
(1) Cancer: Principles and Practice of Oncology, 4th Ed., 1993.
-AIDS-NHL differs markedly from nonAIDS-NHL, p[.] 1915
-Standard nonAIDS-NHL chemotherapy has been
unsuccessful in treating AIDS-NHL, p[. ]1916.
(2) Medical Oncology 2nd Ed. 1993.
-Chemotherapy developed for nonAIDS-NHL has been
disappointing in treating AIDS-NHL, p[. ]1179
(3) National Cancer Institute publication Cancer Net, 1993.
-AIDS-NHL is very different from nonAIDS-NHL.
At page 4 of their Brief, appellants point out that:
Further confirmation of the ineffectiveness of combination
therapy in managing AIDS-NHL may be observed in Example 2 of
the present application. An AIDS-NHL patient was first treated
unsuccessfully with combination therapies usually effective in
nonAIDS-NHL (CHOP, cyclophosphamide + doxorubicin +
etoposide) before obtaining an excellent response from the claimed
compound, gallium nitrate.
In response to appellants’ arguments, the examiner finds (Answer, page
7) that “[a]lthough [a]ppellants elude [sic] to contraindications in the prior art …
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