Appeal No. 1996-2086
Application 08/255,588
586, 587, 172 USPQ2d 524, 526 (CCPA 1972).
Accordingly, the rejection is reversed.
II.
Turning to the § 103 rejection, we find that the examiner is relying on (i) Fuller for
teaching “a process generally applicable to any semiconductor,” (ii) pp. 1-2 of the
specification for teaching “that MCT [sic, mercury cadmium telluride ?] or CdTe [cadmium
telluride] are desirably gettered from Copper in the prior art, and that Te is a known
gettering agent for same,” and (iii) the Schaake abstract for teaching “that the gettering
layer (Te) maybe [sic, may be] further covered with an inert, high melting capping layer
(SiO ) during the heating/gettering step.” Answer, pp. 3-4. The examiner concludes that
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it would be [sic, have been] obvious to one of ordinary skill in the art to getter CdTe
or MCT in the old manner of Fuller, and use Te as the gettering agent, optionally
with an inert capping layer [Answer, p. 4].
We find the examiner’s position lacks merit.
We point out that it is well settled that the examiner has the initial burden of
establishing a prima facie case of obviousness. In re Rijckaert, 9 F.3d 1531, 1532,
28 USPQ2d 1955, 1956 (Fed. Cir. 1993); In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1471-72,
223 USPQ 785, 787-88 (Fed. Cir. 1984). It is the examiner’s responsibility to show that
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