Appeal No. 95-2599
Application 07/983,931
prior art, the claim is unpatentable even though the prior
product was made by a different process.”
On page 5 of the reply brief, Appellants argue that claim 25
recites etch rates that are physical properties of each portion
of the shaped conductive layer. However, as shown above, we have
found that the Examiner has met the burden that Sato either
inherently teaches or that it would have been obvious to those
skilled in the art in view of the Sato teachings to provide "a
shaped conductive layer ... having a upper portion and a lower
portion ... with the lower portion having a faster etch rate as
compared with an etch rate of the upper portion under the same
etching conditions" as recited in Appellants' claim 25. A prima
facie case is a procedural tool which means not only that the
evidence of the prior art would reasonably allow the conclusion
the examiner seeks, but also that the prior art compels such a
conclusion if the Appellants produce no evidence or argument to
rebut it. In re Spada, 911 F.2d 705, 707 n.3, 15 USPQ2d 1655,
1657 n.3 (Fed. Cir. 1990).
On page 15 of the brief, Appellants argue that Sato fails to
teach that the lower portion of the shaped conductive layer
includes a section having tapered walls as recited in Appellants’
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