Appeal No. 2003-1286 5
Application No. 08/898,187
minimum value of “d” below 0.4 microns.” See declaration, paragraph 14. Even was the
statement correct in all aspects, the claimed subject matter before us only requires a width
dimension of “1 micron or less.”1 Accordingly, a teaching by the declarant that the
minimum value of “d” may not be below 0.4 microns constitutes an admission that the
dimension of “d’ could be 1 micron or less.
Furthermore, although the statements in the declaration, in part, state that Soclof
does not show or disclose a structure wherein the width of the silicon rows is 1 micron or
less, paragraphs 18 and 19, these positions only reflect the inventor’s opinion. There is no
evidence present in the declaration or in the record before us to support the positions
taken by the inventor in the declaration.
Based upon the above reasons and those set forth in the Answer, we have
determined that the examiner has established a prima facie case of obviousness. Upon
reconsideration of all the evidence and argument submitted by appellant, we have
determined from the totality of the record that the preponderance of the evidence weighs
in favor of obviousness within the meaning of 35 U.S.C. § 103. See In re Oetiker, 977
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). Accordingly, the
decision of the examiner is sustained.
1 We note that the critical date is not the date on which Soclof filed their patent application as stated
in the declaration, but the date on which the appellant filed his patent application. Accordingly, the
declaration should have shown that at the time of filing this application by the appellant the person having
ordinary skill in the art was not able to make a transistor having dimensions within the scope of the claimed
subject matter.
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