Appeal No. 2004-1974 Page 2
Application No. 09/767,424
We have reviewed the arguments once more and again we do not find them
persuasive. Appellant argues that the total drug exposure and peak plasma level of
pegylated interferon alpha and nonppegylated interferon alpha are different and that
one of skill in the art could not predict the effect the use of pegylated interferon alpha
would have in treating cancer.
First, a conclusion of obviousness need only rest on a reasonable expectation of
success, not absolute predictability. In re O'Farrell, 853 F.2d 894, 903-04, 7 USPQ2d
1673, 1681 (Fed. Cir. 1988); In re Longi, 759 F.2d 887, 897, 225 USPQ2d 645, 652
(Fed. Cir. 1985). Second, we stated that Kline describes pegylated interferon alpha as
being useful in treating renal cell carcinoma and AIDS-related Kaposi’s sarcoma. Slip
opinion, page 3. Thus, the evidence of obviousness relied upon by the examiner
suggests the use of pegylated interferon alpha in treating cancer.
We also note that appellant renews the argument regarding synergistic
combination of the claimed active ingredients. Request, page 7. However, as
previously pointed out, the arguments based upon synergism are not supported by
objective evidence of non-obviousness. Slip opinion, page 4.
Page: Previous 1 2 3 4 Next
Last modified: November 3, 2007