Appeal No. 1998-2756
Application No. 08/448,137
and drawing separately delineated by Saur to be the
“functional equivalent” of each other.
Additionally, the examiner has failed to present any
evidence or convincing reasons why the range for the thickness
of the oxide layer being cold rolled, as recited in claim 8 on
appeal, would have been obvious to one of ordinary skill in
the art (Answer, page 4). The examiner has also failed to
explain how one of ordinary skill in the art would have
modified the grain structure of Jin to produce the recited
critical current density of claim 8 on appeal.
For the foregoing reasons, we determine that the examiner
has failed to establish a prima facie case of obviousness
based on the reference evidence. “Where the legal conclusion
[of obviousness] is not supported by facts it cannot stand.”
In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA
1967). Accordingly, the rejection of the claims on appeal
under 35 U.S.C. § 103 as unpatentable over Jin in view of Saur
is reversed.
The decision of the examiner is reversed.
REVERSED
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