Appeal No. 2001-1092
Application No. 09/169,490
Miyazaki ‘969 or ‘864 relating to (111) planes of the Ag film and
(002) planes of the zinc oxide film (Answer, pages 3, 4, 7 and 8),
even when the reactive sputtering is done in an oxygen and argon
atmosphere (see Miyazaki ‘864, col. 2, ll. 43-51, and Example 1,
esp. col. 8, l. 41). Therefore, even assuming arguendo that
Miyazaki ‘969 and ‘864 were properly combined, the examiner has not
established that the planes formed by the Ag and ZnO films of
Miyazaki ‘864 would necessarily have been the same as those
required by the claimed subject matter. See In re Oelrich, 666
F.2d 578, 581-82, 212 USPQ 323, 326 (CCPA 1981).
Finley was applied by the examiner to show the well known use
of primer layers and protective layers in this art (Answer, page
6). Therefore it is clear that Finley does not remedy the
deficiencies of Miyazaki ‘969 and ‘864 discussed above.
For the foregoing reasons and those stated in the Brief and
Reply Brief, we determine that the examiner has failed to establish
a prima facie case of obviousness in view of the reference
evidence. Accordingly, the rejection of claims 42-47 under 35
U.S.C. § 103(a) over Miyazaki ‘969 in view of Miyazaki ‘864 is
reversed, as is the rejection of claims 48-51 under 35 U.S.C. §
103(a) over the references applied against claims 42-47 further in
view of Finley.
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