Appeal No. 1999-2006
Application No. 08/561,960
between the floating gate and the major surface because the
oxide layers 32 and 32a over the source and the drain regions
and the channel region are of different thicknesses. Therefore,
Paterson too does not anticipate claim 1.
Rejection under 35 U.S.C. § 103
In our analysis, we are guided by the general proposition
that in an appeal involving a rejection under 35 U.S.C. § 103,
an examiner has the burden to make out a prima facie case of
obviousness. If that burden is met, the burden of going forward
then shifts to the applicant to overcome the prima facie case
with
argument and/or evidence. Obviousness is then determined on the
basis of the evidence as a whole and the relative persuasiveness
of the arguments. See In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Hedges, 783 F.2d 1038,
1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745
F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re
Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
We are further guided by the precedent of our reviewing court
that the limitations from the disclosure are not to be imported
into the claims. In re Lundberg, 244 F.2d 543, 113 USPQ 530
7
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