Appeal No. 2003-1801
Application 09/559,347
teaching derived from the references under consideration. See
W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553,
220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851
(1984).
In addition to the foregoing, even if the applied
references were combined in the manner proposed by the examiner,
we cannot agree with the examiner’s determination that the
magnetic recording medium resulting from this combination would
inherently possess the feature of substantially preventing
migration of lithium from the substrate to the magnetic layer
of the modified recording medium of Ross. This is because we
discern merit in the position expressed in the Brief and in the
§ 1.132 Declaration by Ross, filed September 12, 2002, to the
effect that the laser texturizing procedure, which is performed
on the NiNb layer pursuant to the teachings of the Ross patent,
might well destroy any lithium-migrating prevention character-
istic this layer might otherwise have inherently possessed. In
essence, the examiner has dismissed this argument by assuming
that the texturized NiNb layer of the modified recording medium
of Ross would inherently prevent lithium migration and by
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