Appeal No. 95-2655
Application 07/912,029
ordinary skill of the art given the teaching of the Abstract
and Yamamoto that the formulation should resemble the well
known nature and concentration existing within the aqueous
humor of the human eye.
For the foregoing reasons, we conclude that the subject
matter of claims 1 to 20 would have been prima facie obvious
based on the disclosure and teachings of the Abstract and
Yamamoto. The burden of coming forward with evidence or
argument shifts to the appellants. After evidence or argument
is submitted by the appellants in response, patentability is
determined on the totality of the record, by a preponderance
of evidence with due consideration to persuasiveness of
argument. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
Appellants submit that the Mello Declaration under 37 CFR
§ 1.132, filed Dec. 14, 1992, shows that the present
hyaluronate-containing compositions provide unexpected
benefits (brief, pages 3-5). The Mello Declaration identifies
an abstract of a McCulley et al. article (hereafter
“McCulley”) that compares Vitrax, a commercial embodiment of
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