Appeal No. 2004-0777 Page 7
Application No. 09/731,726
lead one of ordinary skill in the art to avoid lead and achieve a
low soft error rate with lower alpha decay, preferably no alpha
decay as described in the abstract of Akamatsu.2
To the extent that appellants are asserting that the
examples furnished in their specification establish unexpected
results for the claimed subject matter, we note that the question
as to whether unexpected advantages have been demonstrated is a
factual question. In re Johnson, 747 F.2d 1456, 1460, 223 USPQ
1260, 1263 (Fed. Cir. 1984). Thus, it is incumbent upon
appellants to supply the factual basis to rebut the prima facie
case of obviousness established by the examiner. See, e.g., In
re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
Appellants, however, do not provide an adequate explanation
regarding any factual showing in the specification, that is
referred to in the brief, to support a conclusion of unexpected
advantages.
In particular, appellants have not established that the test
results presented represent unexpected results based on the
2 Appellants acknowledge the overlap in the alpha amounts
disclosed in Akamatsu and that recited in representative claim 1.
See, e.g., the paragraph bridging pages 5 and 6 of the reply
brief. We note that appellants also acknowledge that such low
alpha amounts are achieved by known methods. See, e.g., the
paragraph bridging pages 12 and 13 of appellants’ specification.
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