Appeal No. 2005-1164 Page 6
Application No. 09/721,131
Brief, page 6. The examiner finds (Paper mailed April 19, 2004, page 3),
however, that Hrinda disclose (col. 8, line 51 – col. 9, line 12), “NaCl
concentrations as high as 1.4 M for prolonged periods, such as greater than 18
hours, only resulted in partial disassembling of HIV particles with dilution to 0.25
M being sufficient to prevent the same.” As the examiner points out (id.), “it
appears that the effective amount of NaCl needed to disrupt the HIV virus far
exceeds what is disclosed and claimed as being the effective therapeutic
range….”5
In response, appellant asserts (Brief, page 7), the NaCl concentrations set
forth in Hrinda “are concentrations for HIV particles floating in phosphate buffered
aqueous sodium chloride. In contrast, appellant’s desirable circulating levels of
sodium chloride … are concentrations in human blood in a human body for HIV
particles attached to human CD4 T-cells, not for HIV particles floating in
phosphate buffered aqueous sodium chloride.” According to appellant (id.), “an
HIV cell attached to a CD4 T-cell in the human body would act differently from
free HIV cells in phosphate buffered saline.” Therefore, appellant asserts (Brief,
page 8), a “person of ordinary skill in the art would expect that HIV cells attached
to CD4 T-cells in the human body should act differently from free HIV cells
floating in phosphate buffered saline.” Appellant, however, provides no evidence
to support this conclusion. As the examiner points out (Answer, page 7),
5 According to the examiner (Paper mailed April 19, 2004, page 3, emphasis added), “[a]pplicant
indicates that the administration should result in circulating levels of NaCl within the range of
about 0.05 µM to about 1.0 µM and that the extra amount of NaCl will disrupt the HIV virus.” See
e.g., appellant’s specification, page 12, emphasis added, “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.” We understand this to mean that the “circulating levels” of NaCl includes the amount of
NaCl administered plus the amount of NaCl that is already present in the human to be treated.
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