Appeal No. 1997-1412 Page 11
Application 08/139,888
After the examiner meets the burden of establishing a
prima facie case, the burden of coming forward with evidence
or argument shifts to the appellants. Oetiker, 977 F.2d at
1445, 24 USPQ2d at 1444. 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. Id., 24 USPQ2d at 1444.
Here, the appellants submit neither evidence nor argument
that an increase in pressure fluctuation and flow fluctuation
of the main assist gas flow in comparison with the sub assist
gas flow does not necessarily flow from the teachings of
Babel. Instead, they merely allege, “there is no evidence
that Babel discloses an arrangement which inherently increases
pressure fluctuation and flow fluctuation of the main assist
gas flow in comparison with the sub assist gas flow.” (Appeal
Br. at 6.) Because this allegation ignores the aforementioned
combination of structural features found in both Babel and the
appellants’ invention, it is not persuasive.
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