Appeal No. 2004-1481
Application No. 09/726,659
10). The examiner finds that the structure of Neoh is “considered
capable” of delivering SOG (id.).
On this record, considering Neoh alone, we disagree with the
examiner’s finding that Neoh is “considered capable” of delivering
SOG. As argued by appellant (Brief, page 7),4 Neoh is directed to
using photoresist, not SOG (see Neoh, abstract; col. 1, ll. 11-14).
On this record, the examiner has not established, by convincing
reasoning or factual evidence, that SOG is capable of being
delivered using the tubes and nozzle of Neoh (see col. 1, ll. 20-
22). Therefore we determine that the examiner has failed to meet
the burden of establishing a prima facie case of anticipation. See
In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32
(Fed. Cir. 1997). Accordingly, we do not sustain the rejection of
claims 1 and 5 under section 102(b) over Neoh.
C. The Rejections under § 103(a)
The examiner adopts the findings from Neoh as discussed above
and in the Answer (page 5). However, the examiner applies On to
show a similar fluid delivery system to Neoh but where an optical
4We note that appellant argues claim 1 as amended (Brief,
page 7). However, as noted in footnote 1, this amended claim was
refused entry by the examiner. Therefore we decide this appeal
as to claim 1 as found in the file record. This error by
appellant does not affect our decision as noted infra.
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