Appeal No. 1998-2267
Application 08/339,084
statements and evidence, Kaplowitz, cited by appellant which would reasonably appear to
establish that NASH is distinct from the fatty liver condition described by Shironaga and
the conditions described by Podda.
After evidence or arguments are 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. On
balance, we believe that the totality of the evidence presented by the examiner and
appellant weighs in favor of finding the claimed invention to be 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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