Appeal No. 2005-1797 Page 5
Application No. 09/954,975
ordinary skill in the art presumed to be familiar with them.” In re Rosselet, 347
F.2d 847, 851, 146 USPQ 183, 186 (CCPA 1965).
On this record the examiner has established that gallium compositions
have anti-viral activities and are effective in inhibiting the reverse transcriptase
activity of retroviruses such as HIV. By inhibiting reverse transcriptase activity,
HIV replication is inhibited. Collery teaches the use of gallium compositions as
antiviral agents. See e.g., Collery, column 1, lines 6-8. Accordingly, we find no
error in the examiner’s prima facie case of obviousness as it applies to claim 11
on appeal.
For their part, appellants assert (Supplemental Brief, page 10, emphasis
removed), “the issued claims in … [Collery] are limited to use of these [gallium]
compounds to treating tumors.” This statement is inconsistent with the evidence
of record. Not only does Collery discuss the use of gallium compositions as
pharmaceutical agents having antiviral activities throughout their specification
(see e.g., column 1, lines 6-10 and 39-41; column 2, lines 17-19; column 3, line
18 – column 4, line 19 and column 16, lines 5-29), Collery’s claim 1 specifically
states “[m]ethod for treatment of viral infections… comprising administering a
gallium complex….” Accordingly, appellants’ argument is not persuasive.
Appellants also assert (Supplemental Brief, bridging paragraph, page 10)
that Collery’s gallium compositions are “complex heterocyclic compound[s] that
contain[ ], as one aspect, gallium (III) ions.” In this regard, appellants assert
(Supplemental Brief, page 10, emphasis removed), Collery’s compositions were
not “gallium per se, but compounds that contained gallium in the context of N-
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