Appeal No. 2000-0834
Application No. 08/798,679
memory element wherein the material switches like a 'fuse' from a
low resistance to a high resistance to form a ROM type device."
The examiner further states that "Atkins teaches an organic based
conjugated material including a dopant which similarly switches
from a low resistance to a high resistance to form a 'fuse'."
The examiner concludes that it would have been obvious to "apply
the doped conjugated organic 'fuse' material of Atkins in a
memory array as Marrocco to form a desireable [sic] ROM 'fuse'
type memory device," since a ROM is "an obvious application of a
known 'fuse' material."
In rejecting claims under 35 U.S.C. § 103, it is incumbent
upon the examiner to establish a factual basis to support the
legal conclusion of obviousness. See In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the
examiner is required to make the factual determinations set forth
in Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467
(1966). Such determinations include the scope and content of the
prior art and differences between the prior art and the claims at
issue. Further, under Graham the examiner must provide a reason
why one having ordinary skill in the pertinent art would have
been led to modify the prior art to arrive at the claimed
invention. Such reason must stem from some teaching, suggestion
or implication in the prior art as a whole or knowledge generally
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