Appeal No. 1998-1726
Application No. 08/681,117
Claim 1 is directed to a process for forming a pattern which comprises
irradiating with light a film of a poly(arylenevinylene) polymer represented by formula
(I). The poly(arylenevinylene) polymer of Holmes is not irradiated with light to form a
patterned film. The patterned film of Holmes is formed from a precursor polymer
which is subsequently treated, such as with an acid and heat, in a way that only a part of
the precursor polymer is converted to an active poly(arylenevinylene) polymer. Thus,
the process of Holmes forms a pattern by the use of materials and steps which do not
anticipate the process of claim 1.
We have not been directed to evidence which indicates the electroluminescent
device of Holmes anticipates the electroluminescent device of claim 8. The Examiner
also has not argued that a the electroluminescent device of claim 8 is the same as the
electroluminescent device of Holmes although produced by a different process.
Consequently, the Examiner has not met the initial burden of presenting a prima facie
case of unpatentability. See In re Oetiker, id.
Based upon the above analysis, we have determined that the Examiner’s legal
conclusion of anticipation is not supported by the facts. “Where the legal conclusion
is not supported by [the] facts it cannot stand.” In re Warner, 379 F.2d 1011, 1017,
154 USPQ 173, 177-78 (CCPA 1967).
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