Appeal No. 2000-0733
Application No. 08/310,041
inherently, the same result. Now, if this is not the case, the burden was shifted to
appellants to produce some objective evidence, or convincing argument, as to why the
use of the same mixture of dopants would not result in the same properties. Perhaps
there is a reason, unarticulated by appellants, as to why the use of these other dopants
in APA would not, necessarily, result in the instant claimed invention. If so, appellants
have pointed to no specific claim language, nor have appellants presented any
convincing argument, that would highlight any such distinction or that would tend to
show that appellants’ result would not necessarily follow from the insertion of either
gallium, indium or aluminum into APA.
Accordingly, since we are faced with a reasonable assertion by the examiner of
the inherent nature of the properties obtained when certain dopants are introduced
along with boron into a P-type body region balanced against a bare assertion by
appellants that Aronowitz would teach away from the use of such dopants in APA, we
find for the examiner in this case. While, perhaps, there might have been a convincing
argument that could have been made by appellants in this regard, we find that no such
convincing argument has, in fact, been made. Arguments not made are waived. In re
Kroekel, 803 F.2d 705, 709, 231 USPQ 640, 642-43 (Fed. Cir. 1986).
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