Ex Parte JURY - Page 12


               Appeal No. 1999-2509                                                                                                   
               Application 08/752,917                                                                                                 

                       We noted above that appellant has not addressed the rejection as stated here in the brief or                   
               reply brief.  Pursuant to questions from the bench at oral hearing with respect to the manner in                       
               which Mackey is applied here, counsel advanced the view that Mackey could not be so                                    
               interpreted,  stating that the term “co-extruded” appearing at col. 5, line 36, meant that there were                  
               separate extruders and separate dies for each of the fat-based materials, and further that the                         
               additional materials were only added when the fat-based material, chocolate, was extruded in a                         
               hollow tube, pointing to col. 5, lines 38-44, and Example 8, wherein fondant is co-extruded with                       
               chocolate to provide a chocolate coated fondant.  The difficulties with appellant’s oral arguments                     
               are first, that it is contrary to the art recognized definition of the term “coextrusion” which                        
               involves forming a mixture in a single extruder and extruding the mixture through a single die                         
               (see above note 3), and second, Mackey teaches that the extrusion of chocolate in a hollow tube                        
               and the use of multi-orifice dies is merely “advantageous,” not required, when such food                               
               materials as the creamy sugar-pastes or fondants (see above note 9) are coextruded with the                            
               chocolate as we discussed above, citing Lamberti.                                                                      
                       With respect to the submission of the samples from the Hershey Symphony® chocolate                             
               candy product, this evidence is mentioned in the brief (pages 13-14) but is not argued with                            
               respect to Mackey.  After the examiner again set forth the position in the answer that this                            
               “product was . . . [not] considered relevant in view of the newly amended claims” (page 7),                            
               appellant merely contends in the reply brief that the product “cannot be dismissed because it is                       
               part of the prior art and provides evidence of the state of the art” (page 3; see also pages 6-7), and                 
               again does not submit argument or objective evidence explaining the practical significance of the                      
               comparison to the teachings of Mackey as applied above, or indeed to any of the references                             
               applied by the examiner.  It is well settled that the burden of establishing the practical                             
               significance of data in the record with respect to unexpected results rests with appellant, 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 Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972) (“This                               
               court has said . . . that mere lawyers’ arguments unsupported by factual evidence are insufficient                     


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