Appeal No. 1999-1871 Page 7
Application No. 08/688,337
in this different embodiment, the sacrificial layer can extend across the entire wafer. This
process is said to require fewer masking steps (Brief at 5; Reply Brief at 3). However, claim 8
does not require that the entire wafer be covered by the sacrificial layer nor does claim 8 exclude
masking steps. Furthermore, claim 8 is dependent on claim 1 which recites that the first etchant
is applied until the sacrificial layer is removed. Therefore, claim 8 must be read as also requiring
removal of the sacrificial layer by the first etchant. We do not agree that claim 8 is directed to a
different embodiment.
Appellant argues that the Examiner has not pointed to any teaching in the prior art that
would have caused one of ordinary skill in the art to have made “the necessary modifications”
(Brief at 5-6). However, the process of claim 8 is rendered obvious for the same reasons as
discussed above with regard to claim 1.
Unexpected Advantages
Appellant states in the Reply Brief that the materials set forth in claims 3 and 4 provide
an unexpected advantage (Reply Brief at 3). “[I]t is well settled that unexpected results must be
established by factual evidence.” In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1365
(Fed. Cir. 1997). Attorney arguments in the Brief cannot take the place of evidence. In re
Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972). Factual evidence is lacking in
the present case.
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