Appeal No. 2004-0605
Application 09/411,129
process, wherein polycrystalline germanium is removed to form an
air space, would be obtained.
The examiner argues that the appellants’ claims do not
exclude the presence of part of the polycrystalline germanium in
the final product, and that in the appellants’ specification the
final product includes polycrystalline germanium layer 32i
(answer, pages 11-13). The examiner has not established that
this argument is correct in view of the appellants’ disclosure
that the polycrystalline germanium is removed (specification,
page 14, lines 23-29; page 15, lines 5-7). Regardless, even if
some of the appellants’ polycrystalline germanium can remain in
the final product, the examiner has not established that some of
Fitch’s germanium-silicon alloy can remain in Fitch’s final
product. The examiner has not explained why, if none of Fitch’s
germanium-silicon alloy can remain in the final product, one of
ordinary skill in the art would have been led to leave
Iranmanesh’s polycrystalline germanium in Fitch’s final product.
For the above reasons we conclude that the examiner has not
carried the burden of establishing a prima facie case of
obviousness of the appellants’ claimed invention. Accordingly,
we reverse the examiner’s rejection.
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