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 9Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 NextLast modified: November 3, 2007