Appeal No. 1998-1412
Application No. 08/397,124
Appellants submitted a Declaration under Rule 37 CFR 1.132, paper no. 13, filed May
5, 1997, to support their belief that selective screening of radiation will influence
plant growth. (Brief, page 5, first full paragraph). The claims have been rejected under
§ 102(b) as anticipated by Armanini. Anticipation under 35 U.S.C. § 102 is an
essentially irrebuttable question of fact. See, In re Malagari, 499 F.2d 1289, 182
USPQ 549, 553 (CCPA 1974), wherein the court stated that anticipation “cannot be
overcome by evidence of unexpected results or teachings away in the art.”citing, In re
Wiggins, 488 F.2d 538, 179 USPQ 421 (CCPA 1973). Consequently, Appellants
evidence of unexpected results is not probative.
CONCLUSION
The rejection of claims 12-17 as anticipated by Armanini under 35 U.S.C.
§ 102(b) affirmed.
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