Appeal No. 2000-0038
Application 08/751,369
known to have the advantages of controllability, high rate of
deposition and rather low cost, Heming would not have disclosed
ion sputtering as a method for forming the waveguide layer
(brief, pages 15-17). The appellants provide no evidence that
ion sputtering has these advantages. The appellants provide only
argument of counsel, and such argument cannot take the place of
evidence. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191,
196 (Fed. Cir. 1984); In re Payne, 606 F.2d 303, 315, 203 USPQ
245, 256 (CCPA 1979); In re Greenfield, 571 F.2d 1185, 1189, 197
USPQ 227, 230 (CCPA 1978); In re Pearson, 494 F.2d 1399, 1405,
181 USPQ 641, 646 (CCPA 1974). Regardless of any benefits of
reactive DC sputtering, Heming’s teaching that ion-enhanced PVD,
which includes reactive DC sputtering, is an effective method for
forming the waveguide layer (col. 6, lines 12-18) would have been
sufficient to have fairly suggested, to one of ordinary skill in
the art, forming the waveguide layer by reactive DC sputtering.
The appellants argue that because their specification
teaches that their process produces a sufficiently critical
waveguide layer despite the fact that an essentially organic
substrate is used, and Heming teaches that such a substrate
introduces its own set of difficulties in achieving a serviceable
waveguide layer, the appellants’ specification provides evidence
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