Appeal No. 2004-1988
Application No. 09/733,718
experimentation to determine the optimum thickness values for a
particular application. It is well settled that where
patentability is predicated upon a change in a condition of the
prior art, such as a change in thickness or concentration or the
like, the burden is on the applicant to establish with objective
evidence that the change is critical, i.e., it leads to a new,
unexpected result. In re Woodruff, 919 F.2d 1575, 1578,
16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454,
456, 105 USPQ 233, 235 (CCPA 1955). In the present case,
appellants have not advanced any argument, let alone objective
evidence, that the claimed thickness ranges provide unexpected
results. As for the reflow temperature of the solder layer
recited in claim 11, appellants have not responded to the
examiner's rationale that it would appear that the solder layer
of Kim, comprising the same tin/lead material, has the same
reflow temperature.
We now turn to the examiner's § 103 rejection of claims 8
and 12-16 over Kim in view of Tsuji. Appellants' argument with
respect to claims 12-16 is essentially the same as that set forth
against the § 102 rejection of claim 1 over Kim discussed above.
However, the § 103 rejection of claim 8 is another matter.
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