Appeal No. 2006-0629 Παγε 8
Application No. 10/668,021
would have to resort to speculation to find that the pressure
sensitive material would be moved from a location between the
wafer and the polishing pad to a position between the polishing
pad and the conditioner. The examiner may not resort to
speculation or unfounded assumptions to supply deficiencies in
establishing a factual basis. See In re Warner, 379 F.2d 1011,
1017, 154 USPQ 173, 178 (CCPA 1967).
From all of the above, we find that the examiner has failed
to establish a prima facie case of anticipation of the invention
set forth in claim 1. Accordingly, the rejection of claim 1
under 35 U.S.C. § 102 (a) or (e) as being anticipated by Lin is
reversed, along with claims 2-9 which depend therefrom. As
independent claim 19 also requires that the pressure sensitive
material is placed between the conditioner and the polishing pad,
the rejection of claim 19, and claim 20 which depends therefrom,
under 35 U.S.C. § 102(a) or (e) is reversed.
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