Appeal No. 2000-1585
Application No. 08/883,427
As a general proposition, in an appeal involving a rejection
under 35 U.S.C. § 103, an Examiner is under a burden to make out
a prima facie case of obviousness. If that burden is met, the
burden of going forward then shifts to the applicant to overcome
the prima facie case with argument and/or evidence. Obviousness
is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986);
In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984); and In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147
(CCPA 1976).
The examiner has set forth a detailed explanation of the
rejection of claim 27 at pages 3 and 4 of the examiner’s answer
in accordance with the above guidelines of a rejection under
§ 103, wherein the examiner states (id. at page 4) that
it would have been obvious . . . to utilize the
Ballance ‘868 resins as a filler for the trench
structure of Sobczak because Sobczak teaches that
siloxane resins should be used and because the siloxane
resin of Ballance ‘868 in combination with the hydrogen
anneal provide moisture resistant, stable dielectrics
with few defects.
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