Appeal No. 1997-2444
Application 08/248,941
lines 24-26) speculates as to a presumed difference of his
cathode structure from crystalline V O as noted by the
25
examiner, the examiner has not reasonably established that
Higashimoto would necessarily obtain an amorphous layer
corresponding to appellant’s claimed layer based on this
record. See In re Robertson, 169 F.3d 743, 745, 49 USPQ2d
1949, 1950-51 (Fed. Cir. 1999).
Consequently, the examiner has not established that
Higashimoto discloses each element of appellant’s claimed
cathode within the meaning of 35 U.S.C. § 102 and, therefore,
has not set forth a prima facie case of anticipation.
Accordingly, the rejection of the claims on appeal under 35
U.S.C. § 102 is reversed.
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