Ex parte MELLO et al. - Page 9




          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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