Appeal No. 2004-0682
Application No. 09/547,152
agree. We observe at the bottom of page 8 and at the top of page
9 of the answer, that the examiner rebuts and states that the
teaching in Xin suggest a substitute gallium indium nitride
arsenide for gallium arsenide in order to reduce the bandgap and
the strain as taught by Xin. However, on page 9 of the brief,
appellants point out that reducing the strain would not be a
motivating factor for one skilled in the art because no strain is
disclosed as being present in the base layer 22 of Liu.
Appellants point out that the gallium arsenide base layer 22 in
Liu is formed from exactly the same material as the emitter layer
24 and the substrate 12 so that strain would not be expected to
be present in the device of Liu and there would be no need to
reduce strain since it is non-existent. On page 9 of the answer,
the examiner rebuts and states that the substitution of gallium
indium nitride arsenide for gallium arsenide may result in some
increase in strain but the benefit of reducing the bandgap and
lowering the turn of voltage would off set such strain. Hence,
we find that the examiner has changed his position from his
position originally set forth in the rejection on page 5 wherein
the examiner states that it would have been obvious to modify Liu
by having a layer of p-doped indium gallium arsenide nitride for
the purpose of lower the bandgap, reducing the strain and
obtaining a better thermal stability. Because of this
uncertainty in the examiner’s assertions, we determine the
examiner has not met his burden of setting forth a prima facie
case of obviousness.
Accordingly, in view of the above, we reverse the rejection
of claims 1-4, 7, 8, 19, 21, and 22 under 35 U.S.C. § 103 as
being obvious over Liu in view of Xin.
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