Appeal No. 2000-1927
Application No. 08/990,754
Murakami (e.g., Reply Brief at 1-2), but do not provide any explanation for the apparent
discrepancy in the Murakami reference.
In any event, the allocation of burdens requires that the examiner provides the
basis, in the first instance, for establishing prima facie obviousness of an invention.
Since the examiner’s theories regarding the actual concentrations of the structure of
Murakami’s Figure 35 appear based on speculation -- insufficient to support findings
underlying a rejection -- appellants had no duty to explain their view of Murakami’s
discrepancy. Moreover, if Figure 35 of Murakami is, indeed, misleading or incorrect,
then there may also be a question with respect to the actual relative concentration of
the “n-type” region 313.
In summary, we are persuaded by appellants that the rejection fails to set forth a
prima facie case for obviousness for the subject matter of claim 1. As the remainder of
the claims on appeal incorporate the limitations of claim 1, we do not sustain the
section 103 rejection of claims 1-6 and 16 as being unpatentable over Murakami and
Hori.
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