Appeal No. 1999-2838
Application No. 08/812,848
disclosure of Zommer has no basis of support in Zommer and could
only come from an improper attempt to reconstruct Appellant’s
invention in hindsight.
As further alluded to by Appellant, it is apparent that the
Examiner has recognized the difficulty in attempting to convert
Zommer’s volumetric concentration value to a implant dosage
value and, instead, attempts to improperly convert Appellant’s
claimed dosage value into a volumetric impurity concentration
value. We agree with Appellant that the Examiner’s analysis at
pages 4 and 5 of the Answer is based on assumptions which have
no basis in the applied prior art. As pointed out by Appellant,
the transfer function equation from the Sze publication
referenced by the Examiner for converting impurity concentration
in atoms/cm to implant dosage in atoms/cm is based on a maximum3 2
impurity concentration value. We find no disclosure in Zommer
which characterizes the disclosed impurity concentration value
as a maximum or peak value. In order for us to sustain the
Examiner’s rejection under 35 U.S.C. § 103, we would need to
resort to speculation or unfounded assumptions or rationales to
supply deficiencies in the factual basis of the rejection before
us. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA
7
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