Appeal No. 2005-1098
Application No. 10/319,149
and 35 but following the teachings of Pernyeszi the shield layer
would then be on layer 33 which places it below layers 35 and 37
(Answer, page 5). Therefore the examiner finds that the Kao
structure as modified by Pernyeszi would have a shield below the
layer of insulator 35 and the contact structure 37 “which, is the
same, apparently, as the PMD layer.” Id. First, even assuming
arguendo the propriety of the examiner’s proposed modification,
on this record the examiner has not established that both the
insulating material 35 or the under bump layer 37 (called the
contact structure by the examiner) is the “same” as the PMD layer
recited in claim 1 on appeal (see the Brief, page 7). Second,
the examiner has not established any specific motivation,
suggestion or reasoning to support the proposed modification of
the Kao structure. See In re Dembiczak, 175 F.3d 994, 999, 50
USPQ2d 1614, 1617 (Fed. Cir. 1999). The examiner has generally
stated the motivation as modifying the structure of Kao as taught
by Pernyeszi “to provide it [the photon blocking layer] in the
ideal place.” Answer, page 4. However, on this record, the
examiner has failed to establish any convincing reason or point
to any specific disclosure or teaching from Pernyeszi regarding
the “ideal place” that would have motivated one of ordinary skill
in this art to modify the structure of Kao as proposed. Third,
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