Appeal No. 1999-2512
Application No. 08/888,499
For the foregoing reasons and those stated in the Answer, we
determine that the examiner has established a prima facie case of
anticipation and obviousness which has not been adequately rebutted
by appellant. Accordingly, the rejections of claims 29, 30, 32-34,
38 and 44 under 35 U.S.C. § 102(e) over Nishiyama; claims 39-40,
42-43 and 45 under 35 U.S.C. § 103 (a) over Nishiyama; and claim
31 under 35 U.S.C. § 103(a) over Nishiyama in view of Chebi are
affirmed.
C. The Rejection for Obviousness-type Double Patenting
The examiner finds that claims 29-33, 38-40 and 42-45 are not
patentably distinct from the claims of Musaka since both sets of
claims require the presence of halogen in silicon dioxide as it is
deposited from TEOS and a source of fluorine when using a plasma
process of like frequencies (Answer, page 19). Appellant only
argues that "[t]his application [sic, patent] is not prior art"
(Brief, page 14) and "Musaka ... is not prior art" (Reply Brief,
page 3). Appellant contends that "the issue here is one of prior
art, not obviousness." Id.
As correctly argued by the examiner (Answer, page 20),
appellant's contention is not well taken. To support a rejection
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