Appeal No. 2003-0868 6
Application No. 09/710,101
Furthermore, based upon the above analysis, we have determined that the
examiner's legal conclusion of obviousness is not supported by the facts. "Where the legal
conclusion [of obviousness] is not supported by [the] facts, it cannot stand." In re
Warner, 379 F. 2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied,
389 U.S. 1057 (1968).
Finally, no consideration has been given to the examiner’s reliance upon the Yilmaz
reference as discussed in the Answer on page 6. The only prior rejection relying on Yilmaz
is directed to claims 6 and 14 wherein Yilmaz further teaches multiple zone extension and
junction depth. There is no stated rejection on the record before us wherein Yilmaz
provides further motivation to combine Mojaradi and Roth. It’s reliance upon by the
examiner on appeal is improper, particularly as there is no ground of rejection wherein
Yilmaz is relied upon as providing motivation to combine Mojaradi and Roth.
A discussion of the tertiary references to Williams and Shekar are not needed in
reaching our decision as they are directed to specific limitations required by dependent
claims.
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