Appeal No. 1997-2509
Application No. 08/230,982
experimentation, where the prior art gave only general guidance as to the
particular form of the claimed invention or how to achieve it.
We agree with appellant that the examiner has not established a prima facie case
of obviousness based on the record before us. At best, the examiner has provided
evidence that it would be obvious to experiment or try combining certain amino acids with
certain proteins in an attempt to achieve protein stabilization.
After evidence or arguments is submitted by the appellant in response to rejection
based on obviousness, patentability is determined on the totality of the record, by a
preponderance of evidence with due consideration to persuasiveness of the argument.
We have carefully studied the arguments and evidence of record. On balance, we believe
that the totality of the evidence presented by the examiner and appellant weighs in favor of
finding the claimed invention non-obvious in view of the cited references. We find the
examiner has not established on the record before us that the cited references both
suggest the claimed subject matter and reveal a reasonable expectation of success to one
reasonably skilled in the art. The rejection of the claims for obviousness of the claimed
invention is reversed.
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