Appeal No. 2005-1797 Page 9
Application No. 09/954,975
AZT. Collery then derives a TI based on the relationship between the IC50 and
EC50 values. It is this value upon which appellants’ base their arguments. As we
understand it, TI refers to “therapeutic index,” which is “the ratio of the toxic dose
to the therapeutic dose. The therapeutic index is large when the toxic dose is
much larger than the therapeutic dose.”7 As demonstrated by Collery’s data,
AZT has a higher TI than Collery’s gallium compositions.
Nevertheless, appellants make no attempt on this record to establish that
the gallium composition set forth in their claim is different from those taught by
Collery. In addition, appellants make no attempt on this record to establish that
their gallium compositions are unexpectedly more effective than those taught by
Collery. Accordingly, we are not persuaded by appellants’ arguments.
On reflection, we find no error in the examiner’s prima facie case of
obviousness. As discussed above, we are not persuaded by appellants’
arguments to the contrary. Accordingly, we affirm the rejection of claim 11 under
35 U.S.C. § 103 as unpatentable over the combination of Narasimhan, Collery,
and Bernstein. As set forth above, claims 12-30, 33, 34 and 36-40 fall together
with claim 11.
Claim 31:
According to appellants (Supplemental Brief, page 11), “claim 31 contains
the recitation of reducing virus shed. The examiner has not pointed to any
teaching in the cited references that describes this [claim] element….” In
response, the examiner finds (Answer, page 10), “the prior art discloses that
7 See “therapeutic index,” in General Practice Notebook at http://www.gpnotebook.co.uk.
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