Appeal No. 2000-0281
Application 08/907,494
of deposition has drawbacks such as increased complexity, expense, and risk of
contamination, and would have been contrary to the generally accepted practices in the
field. (Appeal Brief, page 6, lines 1-11).
The Examiner has not chosen to respond to this argument or provide additional
prior art or other forms of evidence to support his position. Instead, the Examiner
merely states that substituting “the MBE process in Nakamura et al by laser ablation,
CVD or MOCVD for depositing the upper film would have been obvious to one of
ordinary skill in the art” because it is the substitution of equivalents. (Examiner’s
Answer, page 7, lines 13-19). We are left to ponder why only the upper film would be
substituted, and not both or the lower film only. In the absence of some evidence of
record to support the Examiner’s position on obviousness, we are constrained to
reverse this rejection.
The Rejection Under 35 U.S.C. §103(a) Over Nakamura in view of Kingston and Cho
Claims 3-5 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nakamura in view of Kingston, further in view of Cho.
We reverse this rejection for the reasons outlined above. We further note, for
completeness, that Cho teaches a “vapor-growth device that utilizes a high frequency
magnetron sputtering device” (page 4, lines 6-7) to sputter YBCO, then STO (page 4,
lines 7 - 16). Nowhere in Cho have we found evidence to support switching deposition
methods. The Examiner has failed to meet his burden of providing evidence to support
his position. Accordingly, we are constrained to reverse this rejection as well.
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