Appeal No. 2005-1797 Page 6
Application No. 09/954,975
heterocycles.” According to appellants (Supplemental Brief, page 11), “the
references do not clearly identify gallium itself as an HIV therapeutic, nor do they
establish, with any reasonable probability, that if given to an HIV-infected subject,
that it would have any beneficial effects in vivo.” We are not persuaded by
appellants’ arguments for the following reasons. First, appellants’ claim 11 is not
limited to gallium itself, or to any particular gallium composition. In this regard,
we note that the term “gallium composition” as set forth in appellants’ claim 11 is
open to include at least (1) gallium salts, such as gallium nitrate3, and (2) gallium
complexes, such as a gallium-hydroxypyrone complex4. We find nothing in
appellants’ specification or claims that would exclude the gallium compositions
taught by Collery. In this regard, we note that appellants’ reference to gallium
nitrate and a gallium-hydroxypyrone complex in claims 14 and 15 respectively,
serve only to broaden the scope of claim 11 to include more than these two
specific compounds. Comark Communications Inc. v Harris Corp., 156 F.3d
1182, 1187, 48 USPQ2d 1001, 1005 (CAFC 1998) (it is presumed that the
difference between claims is significant.). Accordingly, we are not persuaded by
appellants’ emphasis on Collery’s teaching of gallium complexes.
Further, to the extent that appellants’ assertions are suggesting that the
gallium component of Collery’s compositions is simply a bystander in the anti-
viral activity taught by Collery, we are not persuaded. Collery teaches the anti-
3 See e.g., appellants’ specification, page 4, and claim 14, which depends from and further limits
the gallium composition of claim 11 to gallium nitrate.
4 See e.g., appellants’ specification, page 4, and claim 15, which depends from and further limits
the gallium composition of claim 11 to a gallium-hydroxypyrone complex.
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