Appeal No. 2005-1797 Page 4
Application No. 09/954,975
In this regard, the examiner points out (id.) that appellants acknowledge “that
inhibition of ribonucleotide reductase inhibits HIV replication and that
ribonucleotide reductase inhibitors potentiate the activity of dideoxynucleotides
which are nucleoside reverse transcriptase inhibitors….”
The examiner also finds (id.), Collery “teach that gallium complexes are
effective in treating HIV and that gallium nitrate inhibits reverse transcriptase
found in retroviruses, such as HIV….” In addition, we note that Collery teaches
(column 1, lines 33-38), “preclinical toxicology tests suggest that renal and
hepatic damages might be expected with gallium nitrate … [but,] gallium III,
administered … in the form of an aqueous formulation of GaCl3 at the
therapeutical dosages involves no renal toxicity….” In this regard, Collery
teaches that gallium (III) complexes not only have antitumor activity, but antiviral
activities as well. Collery, column 1, lines 39-40.
Based on this evidence2 the examiner finds (Final Rejection, page 5), a
person of ordinary skill in the art at the time the invention was made would have
found the claimed method prima facie obvious in view of the combination of
Narashimhan and Collery. In this regard, we note that “[t]he test for obviousness
is not express suggestion of the claimed invention in any or all of the references
but rather what the references taken collectively would suggest to those of
2 We recognize that the examiner also relies on Bernstein (Final Rejection, page 5), to teach “that
gallium complexes of hydroxypyrones exhibit increased oral availability and are also suitable for
administration intravenously….” It appears that the examiner relies on Bernstein to reach the
subject matter of e.g., claim 15 which depends from and further limits gallium composition of
claim 11 to a gallium-hydroxypyrone complex. Since claims 12-30, 33, 34, and 36-40 stand for
fall together with claim 11, we find it unnecessary to discuss the Bernstein reference for its
teaching of a gallium-hydroxypyrone complex.
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