Appeal No. 2001-0118
Application No. 09/013,927
theory, the examiner contends that, in the paragraph bridging
columns 5 and 6 of the patent, “Barnes . . . teaches ionizing
the sputter particles solely by the use of the power applied
to the target” (Paper No. 17, page 8).
Notwithstanding the examiner’s reference on page 3 of the
answer to Paper No. 17 for an exposition of his section 103
rejections, subsequent portions of the answer clearly reflect
that the examiner no longer relies upon either of his above
discussed theories as support for a conclusion of obviousness.
For example, in the first full paragraph on page 4 of the
answer, the examiner acknowledges that “[i]t is probably
incorrect to state that the coil . . . of Barnes is ‘merely
extra’ as the examiner has previously argued” and that “[t]he
coil in Barnes does in fact provide power that ionizes sputter
particles.” Regarding his theory involving the disclosure in
the paragraph bridging columns 5 and 6 of Barnes, the examiner
responds to the arguments in the brief concerning this theory
by stating that “Appellant is [sic] correct” and that “[t]he
examiner had improperly interpreted the section of Barnes
[from column 5, line 61 to column 6, line 6]” (answer, page
8).
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