Appeal No. 1998-2077
Application 08/553,324
Backlund” and “Method 2 . . . [utilizing the] (ZQ)P method according to the present invention” since
“claimed Method 2 produced a pulp having a significantly lower Kappa number, a significantly higher
brightness, and significantly higher viscosity than pulp produced using the conventional Method 1
(Backlund)” (brief, pages 13-14). Appellants also contend that “Method 1” involves “the sequence
QZP of Lindberg” and that “Backlund and Lindberg teach the method steps QZP” (reply brief, pages 3
and 5). Appellants further allege that the evidence specification Example 2 establishes “unexpected
advantages” for the method of claim 20 wherein an “alkali is added together with” the chelating agent as
seen in the comparison of “Alt. 2 . . . with Alt. 1 and 3” in which “Alt. 2 resulted in a pulp having a
significantly reduced concentrations of” metal ions (brief, page 15).
It is well settled that the burden of establishing the significance of data in the record, with respect
to unexpected results or for other purposes, rests with appellants, which burden is not carried by mere
arguments of counsel. See generally In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1365-
66 (Fed. Cir. 1997); In re Merck & Co., 800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir.
1986); In re Longi, 759 F.2d 887, 897, 225 USPQ 645, 651-52 (Fed. Cir. 1985); In re Borkowski,
505 F.2d 713, 718, 184 USPQ 29, 33 (CCPA 1974); In re Klosak, 455 F.2d 1077, 1080, 173
USPQ 14, 16 (CCPA 1972); In re D’Ancicco, 439 F.2d 1244, 1248, 169 USPQ 303, 306 (CCPA
1971). In my view, appellants have not carried their burden.
I find that in specification Example 1 “oxygen-delignified sulphate pulp . . . was treated in
accordance with a previously known procedure using chelating agent prior to the ozone stage, and . . . in
accordance with the invention, where chelating agent was added directly after the acid ozone stage,”
after which “the pulp was peroxide-bleached in a similar manner in both cases,” wherein a reference to
the “known procedure” was not supplied (page 6). The sequence for “known” Method 1 is “Stage 1”:
stage Q (pH 5.8), stage Z (H SO , pH 3), and then a “charge of NaOH” (pH not indicated; amount of
2 4
NaOH is more than twice that of Method 2); and “Stage 2”: stage P (MgSO , “final pH 10.9”); in sum,
4
QZ(NaOH)P. The sequence for Method 2 is “Stage 1”: stage Z (initial pH 4.5, “charge of H SO ” and
2 4
resulting pH 3), and stage Q (“charge of NaOH,” pH not indicated); “Stage 2” is stage P (MgSO , “final
4
pH 10.7”); in sum ZQP (pages 7-8). There is no information provided with respect to any washing
steps, although it appears that a wash step would be included after multi-stage “Stage 1” and after
single stage “Stage 2.” The Kappa number, Brightness and Viscosity data reported for Method 1 is 4.2,
18
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