Appeal No. 1998-1728
Application 08/397,243
15 µm and preferably from about 5 to 10 µm which would be arranged in a “minute,” “linked structure,”
by using metal powders of 10 µm or less in combination with silicon powder of 30 µm or less in the
process taught therein. Indeed, Satou exemplifies the use of such powder sizes in Example 1 (col. 16,
lines 6-10) to obtain a target containing metal silicide grains and silicon grains with an average grain
diameter of 2 µm and 7 µm, respectively (Satou Table 2), which reasonably appear to satisfy the
limitations of the appealed claims as we found above.
Second, appellants submit that “the structure of the [Satou] target is quite different from that of
the present invention at the point of limiting the number of [metal silicide] grains independently existing in
the unit area of the target structure” (brief, page 10). In this respect, appellants allege that the
“unexpected advantage of reducing the number of particles is clearly described in Tables 2 (page 43)
and 7 (pages 64-65) of the specification together with comparison data of prior art targets,” which
includes a comparison of the “data for Examples 1-10, made according to the above-described
process [defined in claim 6], and Comparative Examples 1-6, made according to a process similar to
Satou, using only high pressure, with no low pressure step,” that is also described at Table 1 and page
41, first paragraph, as well as in FIGS. 1A and 2A and FIGS. 3A and 4A, corresponding to
specification Examples 1 and 6 and Comparative Examples 1 and 4 (brief, page 8; italic emphasis
supplied; see also pages 7-12).
Upon carefully considering this evidence in light of appellants’ arguments, we cannot agree with
appellants that the same reliably establishes that “the process disclosed by Satou does not produce the
presently claimed target” (brief, page 10). It is well settled that the burden of establishing the
significance of data in the record, with respect to unexpected results or for other purposes, rests with
appellants, which burden is not carried by mere arguments of counsel. See generally, In re Geisler,
116 F.3d 1465, 1470, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997); In re Merck & Co., 800 F.2d
1091, 1099, 231 USPQ 375, 381 (Fed. Cir. 1986); In re Longi, 759 F.2d 887, 897, 225 USPQ
645, 651-52 (Fed. Cir. 1985); In re Borkowski, 505 F.2d 713, 718, 184 USPQ 29, 33
(CCPA 1974); In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972); In re
D’Ancicco, 439 F.2d 1244, 1248, 169 USPQ 303, 306 (CCPA 1971). An explanation of the
significance of the evidence is particularly relevant where, as here, it is apparent from the record that
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