Appeal No. 2005-1797 Page 7
Application No. 09/954,975
viral activity of gallium nitrate. See e.g., Collery, column 1, lines 27-30. Collery
also teaches that “preclinical toxicology tests suggest that renal and hepatic
damages might be expected with gallium nitrate” as opposed to formulations of
GaCl3. Collery, column 1, lines 33-38. Collery then describes other gallium
complexes having antiviral activity. Accordingly, to the extent that appellants’
would intimate that the gallium component of Collery’s compositions is simply a
bystander with no anti-viral activity, we disagree.
Appellants also assert (Supplemental Brief, page 10), “there is only
marginal information in … [Collery] on the activity of these compounds, and what
information there is suggest that these compounds are far less effective at
inhibiting HIV (low EC50/IC50 ratio) than existing drugs such as AZT.” For the
following reasons, we are not persuaded by this argument. First, to the extent
that appellants assert that Collery’s composition is less effective than other
existing drugs, we note that “[a] known or obvious composition does not become
patentable simply because it has been described as somewhat inferior to some
other product for the same use.” In re Gurley, 27 F.3d 551, 554, 31 USPQ2d
1130, 1132 (Fed. Cir. 1994). We recognize appellants’ attempt to distinguish the
facts on this record from those in Gurley. Reply Brief, page 7. According to
appellants (id.), the question on this record “is whether the gallium compounds of
the present invention would be thought useable in light of the clear indication of
reduced function in … [Collery].” We are not persuaded by appellants’ argument.
There is no evidence on this record to suggest that appellants’ gallium
composition excludes those taught by Collery. In this regard, while appellants
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