Appeal No. 2002-0102
Application No. 09/298,879
least about 40% of the second oxide layer 146 is grown
below (underlying) the layer 134.
Examiner's answer, page 8 (referencing figures 1C and D of El-
Diwany).
However, the examiner's mere assertion that it is well known
that a portion of oxide grows below the surface of an existing
layer is simply insufficient to establish a prima facie case of
obviousness. The Federal Circuit has held that it is
impermissible for the Board to reach conclusions based on what
the examiner believes to be basic knowledge or common sense.
In re Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir.
2001). Rather, it is necessary for the examiner to identify
concrete evidence in the record in support of its findings, see
Id., such that the Board may examine the relevant data and
articulate a thorough explanation for its decision. See In re
Lee, 277 F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002).
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