Appeal No. 2001-1051 Page 3
Application No. 08/185,079
According to the rejection:
This deficiency is cured by the similarity between the respiratory
syncytial virus (RSV) and the AIDS etiological agent. RSV and HIV
are both RNA viruses possessing a similar replicative schema in
their respective host cells. It is noted that Tidwell [ ] reported the
claimed compounds exhibiting antiviral activity to virus other that
[sic] the claimed RSV (([Tidwell III]), column 11, lines 43-45).
Vonderfecht [ ] further motivate[s] the skilled artisan to employ
these compounds therapeutically on retroviral infection. Attention
is directed to page 2015 wherein Vonderfecht [ ] suggest[s] these
compounds as useful for the claimed retroviral etiological agent.
Absent information to the contrary, the skilled artisan would
have been motivated by the data of Tidwell [ ] to employ the
claimed compounds against various RNA virus and enjoy a
reasonable expectation of success. Although Tidwell [ ] report[s]
that the claimed compounds are specific for the RSV etiologial
agent, the statement at column 11 and the presented data render
such averments moot.
Thus, two distinct and powerful motivations [exist] [sic] to
employ Applicants’ compounds in retroviral therapy. It would follow
therefore that the instant claims recite prima facie obvious subject
matter, and are properly rejected under 35 USC 103.
Id. at 3-4.
Appellants argue that the Tidwell references are all cumulative to one
another, and all deal with the RSV virus. According to Appellants, RSV is not a
retrovirus, but a paramyxovirus and that paramyxovirus and its replicative
scheme is not analogous to that of a retrovirus. Vonderfecht, Appellants argue,
relates to a rotavirus, which again, is not a retrovirus. Moreover, Appellants
contend that, contrary to the statement in the rejection that the claimed
compounds are useful against retroviruses, “Vonderfecht only states that a
number of viruses require host proteases for productive infection and that
therefore protease inhibitors MAY have a broad range of antiviral activity.”
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