Appeal No. 1997-2356
Application 08/109,798
the board nor an examiner can substitute its judgment of the Lidgate Declaration for that of
an established expert in the art. In re Zeidler, 682 F.2d 961, 965, 215 USPQ 490, 494
(CCPA 1982).
Although Pignatti appears to describe an absence of aggregation and a
biologically active NGF in the pH range of 4.0 to 7.6 (Table 1, page 157), the examiner has
not shown that Pignati describes or suggests the unexpected stability of NGF in the pH
range of 4.5 to 6.0 as evidenced by the reduced rate of degradation for NGF in that range.
Lidgate Declaration, Exhibit 1.
After evidence or arguments are submitted by the appellants 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 appellants weighs in favor
of finding the claimed invention not to be obvious in view of the cited references. The
rejection of the claims for obviousness of the claimed invention is reversed.
CONCLUSION
The rejection of claims 1 -11 under 35 U.S.C. § 103 is reversed.
REVERSED.
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