Appeal No. 1997-0228
Application No. 08/328,534
rebut the prima facie case by convincing argument or evidence
(e.g., unexpected results). In re Mayne, 104 F.3d 1339, 1342, 41
USPQ2d 1451, 1454 (Fed. Cir. 1997). Regarding unexpected
results, these must be established by factual evidence; mere
argument or conclusory statements in the specification do not
suffice. In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362,
1365 (Fed. Cir. 1997) (quoting In re De Blauwe, 736 F.2d 699,
705, 222 USPQ 191, 196 (Fed. Cir. 1984)). Also, it is not enough
for the appellant to show a difference in results between the
claimed invention and the prior art. The difference must be
shown to be a truly unexpected difference. In re Freeman, 474
F.2d 1318, 1324, 177 USPQ 139, 143 (CCPA 1973).
Referring to the declaration under 37 CFR § 1.132 filed on
November 8, 1994, the appellant argues that “the atmospheres of
the present invention afford surprisingly superior protection for
orange juice.” (Appeal brief, page 5.) However, the appellant
does not adequately explain how the test results shown in the
declaration are considered unexpected over the teachings of FR
‘669, which discloses that argon, when sparged (not blanketed)
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