Appeal No. 1997-4194
Application No. 08/357,435
1000 nm or material which is essentially amorphous and prepared in accordance with
a prior art process. See Example 8, column 8, lines 38-49.
Accordingly, we conclude that no motivation exists for the formation of a metal
alloy film having the requisite film thickness required by the claimed subject matter.
In view of the above analysis, we have determined that the examiner’s legal conclusion
of obviousness is not supported by the facts. “Where the legal conclusion [of
obviousness] is not supported by the facts it cannot stand.” In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
We next turn to the rejection of claims 20 through 24 which are devoid of the
limitation, “less than about 3000 D thick.” In the absence of the aforesaid limitation,
the claimed subject matter reads on a coating layer of any thickness including the
1,000 nm disclosed by Dubois. See Abstract. As for the general formula of the
claimed subject matter, we find that the formula disclosed by Dubois, column 3, lines
7-17 overlaps that of the claimed subject matter. We further find that the specific
formulas at column 5, line 16 and column 7, lines 53-54 anticipates the formula of
the claimed subject matter. As for the requirement of a quasi crystalline film, we
find that Dubois discloses a coating material that contains, “at least 40% by mass of a
quasi crystalline phase.” See column 3, line 15, and preferably, “at least 80% of
quasi-crystalline phase.” See column 4, lines 60-61. Furthermore, we find no
distinction between the “film” of the claimed subject matter and the “coating”
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