Appeal No. 2000-0042
Application No. 08/948,179
providing a substrate with raised structures on a surface
thereof, said raised structures having tops and sides and upper
corners at junctions of said tops and said sides, and said
substrate and said raised structures being covered conformably
with an etching layer of a material to be facet etched; and
sputter etching said etching layer in a plasma including an
inert gas, and a heavy halogen gas, wherein the heavy halogen gas
is present in the plasma in a sufficient amount such that the
sputtering ratio of the sputter rate of said etching layer at the
upper corners of said raised structures to the sputter rate of
said etching layer at said substrate is greater than 4:1.
In the rejection of the appealed claims, the examiner does
not rely upon prior art.
Appealed claims 1-13, 15-27, 29 and 31 stand rejected under
35 U.S.C. § 112, first paragraph, enablement requirement.
We have thoroughly reviewed the respective positions
advanced by appellants and the examiner. In so doing, we find
ourselves in agreement with appellants that the examiner has not
made out a prima facie case of non-enablement within the meaning
of 35 U.S.C. § 112, first paragraph. Accordingly, for the
reasons set forth by appellants in the principal and reply briefs
on appeal, we will not sustain the examiner's rejection.
It is well settled that in order for an examiner to properly
impose a rejection under the enablement provision of 35 U.S.C.
§ 112, first paragraph, the examiner has the initial burden of
establishing, by compelling reasoning or objective evidence, that
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