Appeal No. 2001-2212
Application No. 09/019,409
claimed invention. In our view, the Examiner's analysis is
sufficiently reasonable that we find that the Examiner has at least
satisfied the burden of presenting a prima facie case of
obviousness. The burden is, therefore, upon Appellants to come
forward with evidence or arguments which persuasively rebut the
Examiner’s prima facie case of obviousness. Arguments which
Appellants could have made but elected not to make in the Brief
have not been considered in this decision (note 37 CFR § 1.192).
In response, Appellants assert several arguments in support of
the contention that the Examiner has failed to establish a prima
facie case of obviousness. Initially, Appellants contend (Brief,
pages 6-10) that, in contrast to the claimed invention, Esquivel
lacks the formation of a tunnel oxide layer and the use of dry
etching to form plural stacks. Appellants further assert that the
Examiner has skipped in a zig-zag manner from section to section in
Esquivel to establish correspondence with the claimed method steps
and has not shown that Esquivel’s fabrication steps occur in the
sequence presented in the appealed claims.
After reviewing the Esquivel and Gill references in light of
the arguments of record, we do not find Appellants’ arguments to be
persuasive. As pointed out by the Examiner (Answer, page 5),
Esquivel provides a clear suggestion (column 6, lines 38-45) of the
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