Ex parte MELLO et al. - Page 2




                 Appeal No. 95-2655                                                                                                                     
                 Application 07/912,029                                                                                                                 


                                                           DECISION ON APPEAL                                                                           
                 This is an appeal under 35 U.S.C.  134 from the                                                                                       
                 examiner’s final rejection of claims 1 to 20, which are all                                                                            
                 the claims in this application .                      2                                                                                
                          According to appellants, the present invention is                                                                             
                 directed to physiological visco-elastic formulations which                                                                             
                 contain hyaluronates in a balanced salt solution including                                                                             
                 calcium and magnesium ions.  One important feature of these                                                                            
                 formulations is that they resemble or approach the composition                                                                         
                 of the aqueous humor of the human eye.  These compositions                                                                             
                 have enhanced ocular compatability and are useful in                                                                                   
                 intraocular surgical procedures (brief, pages 1-2).                                                                                    
                          Appellants’ brief includes a statement that the claims on                                                                     
                 appeal do not stand or fall together (page 2).  Contrary to                                                                            
                 the examiner’s assertion on page 2 of the answer, appellants                                                                           


                          2The final rejection, mailed March 24, 1993, states that                                                                      
                 claims 1 to 22 are pending and are rejected (see PTOL-326,                                                                             
                 Part II, Items 1 and 4, and page 3, line 2, of the Final                                                                               
                 Rejection).  However, page 2 of the Final Rejection correctly                                                                          
                 states that claims 1 to 20 are presented for examination and                                                                           
                 are “again rejected”.  Since appellants’ brief states that                                                                             
                 claims 1 to 20 are pending and have been finally rejected                                                                              
                 (page 1), the examiner’s error in the Final Rejection is                                                                               
                 harmless.                                                                                                                              
                                                                           2                                                                            





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