Appeal No. 1998-1746
Application No. 08/427,462
"uniformity of sites," does not necessarily or inherently
follow from the teachings of the prior art. See In re Spada,
911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); In
re Best, 562 F.2d 1252, 1255,
195 USPQ 430, 433 (CCPA 1977). Mere assertions by counsel
cannot substitute for factual evidence lacking in the record.
Turning to the rejection of claim 6, we are not persuaded
that an ordinary artisan would have found it obvious from
either Kobori or Okino to produce a stepped surface as claimed
for the purpose of promoting cone formation on that surface.
While those references may show stepped surfaces, such
surfaces appear to serve fundamentally different purposes than
that of promoting cone formation. For instance, in Kobori
there is no indication that any stepped surface has anything
to do with how the cone-like structure 6 was formed. In
Okino, there is no indication that the surface involved in
cone or pin formation, e.g., the surface of probe pin
conductive layer 2, is a stepped surface in the sense defined
by claim 6.
As for claims 2-5, we agree with appellants that Wehner
(paragraph bridging pages 1822 and 1823) discourages the use
8
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