Appeal No. 2005-1164 Page 3
Application No. 09/721,131
Claim 35 stand rejected under 35 U.S.C. § 112, first paragraph, as the
specification that fails to provide an enabling description of the claimed invention.
We affirm the rejection of claims 22-42 under 35 U.S.C. § 101 and § 112,
first paragraph. Having disposed of all claims on appeal, we do not reach the
separate rejection of claim 35 under 35 U.S.C. § 112, first paragraph.
CLAIM CONSTRUCTION
Claim 22:
The method of claim 22, comprises two steps.
Step 1: administer a sodium chloride formulation to a human’s upper
gastrointestinal tract in an amount1 that is (i) sufficient to provide
more sodium chloride than the human’s average daily intake for
sodium chloride2, but (ii) less than a toxic amount measured by
TCLo and LD50.3
Step 2: periodically repeat the first step.
As we understand it, part (c) of claim 22 sets forth the result obtained by
performing two method steps – alleviate HIV infection. As the examiner points
out (Answer, page 2), the phrase “alleviation of the HIV infection”, as it appears
1 According to appellant’s specification (page 12), “whatever administrative method is chosen
should result in circulating levels of the NaCl within a range of about 0.05 µM to about 1.0 µM.”
2 According to appellant’s specification (bridging paragraph, pages 10-11),
[a]dministration of the NaCl formulation should be sufficient to provide more than
the minimum daily requirement of NaCl according to the National Academy of
Sciences, which is a minimum recommendation for Americans of 500 mg/day of
sodium (1250 mg/day of NaCl). More preferably, administration of the NaCl
formulation should be sufficient to provide more than what the average American
chooses to consume (which is 4960 to 6230 mg/day of NaCl according to the
U.S. Food and Drug Administration) and should be sufficient to provide more
than what the average human of the world’s population chooses to consume
where salt is readily available (which is 6000 to 11000 mg/day of NaCl….
3 Claim 22 defines “TCLo” as the dosage for oral consumption that is the lowest dosage of
sodium chloride that has produced toxic side effects in humans, and “LD50” as the dosage of
sodium chloride that is lethal for 50% of the human population.
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