Appeal No. 1999-2143
Application No. 08/734,866
We cannot agree with the examiner. The examiner has not
identified any evidence in the relied upon abstracts establishing
that the distance between the test “dummy” patterns was known to one
of ordinary skill in the art to be a result effective variable. In
our view, the absence of such evidence is fatal to the examiner’s
rejection. In re Antonie, 559 F.2d 618, 620, 195 USPQ 6, 8 (CCPA
1977).
We therefore reverse the examiner’s rejection of claims 1
through 8 under 35 U.S.C. § 103 as unpatentable over JP ‘188 and
claims 9 and 10 under 35 U.S.C. § 103 as unpatentable over JP ‘188 in
view of JP ‘005.
The decision of the examiner is reversed.
We remand the subject application to the examiner for
consideration of the entire English language translations of JP ‘188
and JP ‘005, copies of which are attached to this decision. The
examiner should consider these translations in their entirety and, if
warranted, apply either or both of these references by themselves or
in combination with other references in rejections as may be
appropriate.
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