Appeal No. 2002-1417
Application No. 09/306,484
1016, 154 USPQ 173, 177 (CCPA 1967)). The one who bears the initial burden of
presenting a prima facie case of unpatentability is the examiner. In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
We are persuaded by appellants that the evidence relied upon is not sufficient to
establish a case for prima facie unpatentability of the invention of instant claim 1. Gill
teaches placing a layer of NiFe between a NiO layer and a Co film. While the artisan
might have regarded the teaching as broader than the express terms, as alleged by the
examiner, and applicable to the structure of Fontana to the extent that it meets the
terms of instant claim 1, we have no factual support for the position in this record. Cf.
In re Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001) (in a
determination of unpatentability “the Board must point to some concrete evidence in the
record in support of...[the]...findings”).
Instant claim 20, the remaining independent claim on appeal, also stands
rejected over the combination of Fontana and Gill. The claim requires a buffer layer
positioned between a synthetic antiferromagnetic layer and an Mn-based
antiferromagnetic layer. We cannot sustain the rejection because Gill, relied upon for
the “buffer layer,” has not been shown to suggest placing a buffer layer between a SAF
and an Mn-based antiferromagnetic layer.
Since neither Hayashi nor Fuke remedy the deficiency of the rejection applied
against base claims 1 and 20, we do not sustain any of the rejections under 35 U.S.C.
§ 103.
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