Appeal No. 1997-3484
Application 08/089,359
discloses forming source and drain contacts on p-type
regions 6 and 6 and n-type regions 8 and 9. Thus, the
anticipation rejection is improper. The Examiner states
(EA3-4): "Alternatively, it would have been obvious to
alloy the contacts with the underlying material in order to
obtain ohmic contacts." The Examiner cites no evidence to
support this conclusion. "Even if obviousness of the
variation is predicated on the level of skill in the art,
prior art evidence is needed to show what that level of
skill was." In re Kaplan, 789 F.2d 1574, 1580,
229 USPQ 678, 683 (Fed. Cir. 1986). "Assertions of
technical facts in areas of esoteric technology must always
be supported by citation to some reference work recognized
as standard in the pertinent art." See In re Ahlert, 424
F.2d 1088, 1091, 165 USPQ 418, 420 (CCPA 1970); accord In re
Pardo, 684 F.2d 912, 917, 214 USPQ 673, 677 (CCPA 1982).
See also In re Eynde, 480 F.2d 1364, 1370, 178 USPQ 470, 474
(CCPA 1973) (court will not take judicial notice of the
state of the art). Regardless of what we may know
personally, there is no evidence to support the Examiner's
bare conclusion in any further judicial review.
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