Appeal No. 2000-0038
Application 08/751,369
by any particular process (col. 5, line 64 - col. 6, line 2).
Hence, Heming would have fairly suggested, to one of ordinary
skill in the art, using an intermediate layer having the
disclosed thickness in combination with a waveguide layer formed
by any of the disclosed processes including ion-enhanced PVD.
Claim 36
Claim 36 requires sputtering with a DC plasma discharge
supplied by a DC generator, and cyclically separating the
generator from the plasma discharge and simultaneously short
circuiting the plasma discharge. The examiner argues that this
is analogous to the pulsing microwave treatment disclosed by
Heming (col. 13, lines 47-48 and 68). The examiner, however,
provides no support for this argument. The mere speculation
provided by the examiner is not sufficient for establishing a
prima facie case of obviousness. See In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S.
1057 (1968); In re Sporck, 301 F.2d 686, 690, 133 USPQ 360, 364
(CCPA 1962). Moreover, the examiner has not explained why, even
if these processes are analogous, Heming’s disclosure of pulsed
microwave PICVD treatment would have led one of ordinary skill in
the art to the particular process recited in the appellants’
claim 36.
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