Appeal 2006-2992
Application 10/073,710
by Appellants of a broader definition. See In re Bigio, 381 F.3d 1320, 1325,
72 USPQ2d 1209, 1210-11 (Fed. Cir. 2004). Since Appellants present data
from a process and apparatus where as much as 2500 ppm of nitrogen is
present, with similar results over the range of 5 to 2500 ppm nitrogen
(Figures 11 and 11A; Specification 23:18-21), we determine that “essentially
free of nitrogen or oxygen” may include up to 2500 ppm of either gas, and
the term “essentially free of leaks” include any apparatus where leaks of
nitrogen or oxygen do not cause the plasma gas to go over this 2500 ppm
limit for each gas.
Since Appellants disclose that the “basic description of the preferred
microwave plasma deposition apparatus employed in the present invention is
set forth in U.S. Patent No. 5,311,103 [Asmussen]” (Specification, sentence
bridging pages 9-10; see also Specification 11:5-8), we determine that the
apparatus of Asmussen ‘103 must meet the limitation of claim 1 that it is
“essentially free from leaks of nitrogen or oxygen.”
We determine that the Examiner has established a reasonable belief
that the process of Gruen does not include any oxygen or nitrogen for the
following reasons. First, the Examiner finds that Gruen employs a plasma
gas consisting of only three elements, namely argon, hydrogen, and methane
in amounts totaling 100% (Answer 9, citing Table 1 of Gruen). Second, the
Examiner finds that Gruen teaches excluding oxygen from the hydrocarbon
element of the plasma gas (col. 4, ll. 16-20), therefore suggesting to one of
ordinary skill in this art that added oxygen would have been deleterious to
the plasma (Answer 3 and 9). Therefore, we determine the burden of proof
has shifted to Appellants. We note that Appellants have not established by
evidence or technical reasoning that the process of Gruen would have
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