Appeal No. 2003-1973
Application No. 09/192,952
in the figure would have been considered truly unexpected by one
of ordinary skill in the art. In re Merck & Co., 800 F.2d 1091,
1099, 231 USPQ 375, 381 (Fed. Cir. 1986) . It is well settled
that the burden of establishing unexpected results is on the
party asserting them, and we do not find that the present
appellants have satisfied this burden. Indicative of this is
appellants’ characterization of the figure in the Reply Brief in
terms of “what appears to be unexpected” (page 3 of Reply Brief,
second paragraph). Accordingly, it is our determination that the
prima facie case of obviousness established by the examiner has
not been rebutted by appellants.
In conclusion, insofar as appellants have not demonstrated
that one of ordinary skill in the art would have been dissuaded
from offsetting the drain region of a Fermi-FET for the advantage
taught by Matsumoto, and appellants have not rebutted the prima
facie case of obviousness with objective evidence of
nonobviousnes, the examiner’s decision rejecting the appealed
claims is affirmed.
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