Appeal No. 1998-2941 Page 16
Application No. 08/061,985
Reexamination Control No. 90/003,682
1399, 1405, 181 USPQ 641, 646 (CCPA 1974). Furthermore,
expressions of opinion by the appellants' counsel, such as
those set forth in the brief, are not considered to be
dispositive with regard to the issue of enablement. See In re
Reynaud, 331 F.2d 625, 627, 141 USPQ 515, 518 (CCPA 1964).
Thus, the appellants have not met their burden of establishing
that Dunn is nonenabling.
The appellants argue (brief, p. 158) that Dunn was
prepared on a laboratory scale and "thus there is no
indication that the results of Dunn et al. could be replicated
on a commercial scale." Furthermore, the appellants assert
that they are not aware of any commercial product produced
using the Dunn process. We agree with the examiner (answer,
p. 78) that these arguments appear "to pertain to the process
used in making said eggs" and that these arguments "are
irrelevant since the instant product claims do not call for
same" (e.g., not commensurate in scope with claim 20).
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