Appeal No. 1997-0296
Application No. 08/378,086
packaging conditions (e.g. pre-flushed with gas?) were not
presented or verified as having been common in value to each
test” (page 5 of answer). The burden of establishing unexpected
results is on the party asserting them and it cannot be simply
presumed that all the controlling parameters were the same for
all of the reported tests. Furthermore, the declaration evidence
is hardly commensurate in scope with the degree of protection
sought by the appealed claims. In re Grasselli, 713 F.2d 731,
743, 218 USPQ 769, 778 (Fed. Cir. 1983). For instance, while the
declaration demonstrates the effect of different gases upon
“chocolate”, the claims are not so limited but, rather, embrace
methods of injecting the gases into precursors such as cocoa
beans or raw cocoa. Furthermore, notwithstanding appellant’s
arguments to the contrary, the declaration provides no evidence
of treating with one of the claimed gases, mainly xenon and
mixtures thereof. Moreover, we are not satisfied that appellant
has established that the declaration results would be considered
unexpected by one of ordinary skill in the art in light of the
disclosure of French ‘669, which specifically discloses the
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