Appeal No. 1996-0249 Page 9
Application No. 08/076,709
does not require absolute certainty, but only a reasonable
expectation of success. Merck & Co. Inc. v. Biocraft Labs.,
Inc., 874 F.2d 804, 809, 10 USPQ2d 1843, 1847 (Fed. Cir.
1989); In re O'Farrell, 853 F.2d 894, 904, 7 USPQ2d 1673, 1681
(Fed. Cir. 1988).
With regard to the second grouping of claims, including
representative claim 12, appellant further argues that the
applied prior art does not suggest that the claimed product
"will protect the encapsulated additive through commercial
sterilization and storage yet release the additives upon
reheating..." (brief, page 4). At the outset, we note that
appellant has not furnished any convincing argument showing a
patentable distinction between a sauce as called for in claim
12 and a topping as disclosed by Johnson (brief, page 3).
Moreover, the mere fact that appellant urges a potential new
advantage in using the encapsulated additive in commercially
sterilized and stored food products does not alter the
patentability of the product claims on appeal herein. In this
regard, we note that appellant's arguments in the brief do not
take the place of evidence in the record. See In re Pearson,
494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
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