Appeal No. 2002-0190
Application No. 09/149,018
McMordie is silent as to whether the article contains
sulfur. However, McMordie discloses depositing the platinum
layer by electroplating (col. 7, lines 12-15; col. 9, lines
62-63; col. 10, line 67; col. 14, lines 19-20), and the examiner
finds, based upon the appellants’ specification, that a platinum
layer formed by electroplating necessarily contains sulfur
(answer, page 7).2 Because the examiner’s finding is reasonable
and the appellants have not argued that it is incorrect, we
accept it as fact. See In re Kunzmann, 326 F.2d 424, 425 n.3,
140 USPQ 235, 236 n.3 (CCPA 1964).
The examiner argues that McMordie grit blasts the
aluminum/silicon layer in order to remove undiffused coating
residues, and that because this process step is the same as that
of the appellants, it would remove sulfur-concentrated material
as required by the appellants’ claim 1 (answer, pages 3-4). The
examiner, however, has not established that McMordie’s undiffused
aluminum/silicon slurry material, i.e., material which has not
diffused into the platinum-coated substrate, contains sulfur.
Hence, the examiner has not established the McMordie would have
fairly suggested, to one of ordinary skill in the art, removing a
2 The specification states (page 4, lines 3-7): “The deposition of the platinum-containing
first layer and the aluminum-containing second layer leave these layers with a relatively high
sulfur content. In particular, the first layer is normally electrodeposited onto the surface of the
substrate, which leaves a high sulfur content in the first layer.”
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