Appeal No. 2002-1183
Application 08/975,549
First, the examiner concludes that it would have been
obvious to one of ordinary skill in the art to substitute an
electrical functionality test for Littlebury’s parametric test 4
(see page 2 in the final rejection and page 3 in the answer). As
so modified, the Littlebury method would meet the claim
limitations in question. There is nothing in Littlebury,
however, which would have suggested this modification, and the
examiner has failed to advance any additional evidence to cure
this deficiency. As persuasively argued by the appellants,
Littlebury’s differentiation between functionality and parametric
testing (see column 3, lines 12 through 20) and use of each at
intentionally distinct stages of the disclosed method teach away
from the proposed substitution, and additionally belie any notion
that the artisan would recognize that “functional tests [are]
only a sub-species of a parametric test” (answer, pages 5 and 6)
as urged by the examiner.
In the alternative, the examiner finds that the electrical
functionality testing steps at issue in claims 28 through 32 are
met by Littlebury’s second functionality test 9, 9' (see page 2
in the final rejection and pages 3 and 7 in the answer). The
appellants counter that
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