Appeal No. 2005-0453 Page 7
Application No. 09/893,866
In the process of claim 4, the impurity is nickel (Ni) and it is present in the target in a
concentration of 0.01 to 0.5 atomic percent (at %) and present in the deposited film in a
concentration of 0.01 to 0.5 at %.
Both the Appellant and the Examiner agree that Zhang identifies nickel (Ni) as useful as
the impurity and that Zhang teaches a concentration range of 1x1017 cm-3 or more for the
resulting film (Answer, p. 3 and p. 10; Brief, pp. 6-7). The Examiner acknowledges that the
concentration of Ni in the target is not identified by Zhang (Answer, p. 10). It is the Examiner’s
position that one of ordinary skill in the art would have had the level of skill required to optimize
the concentration levels through routine experimentation to obtain the desired level of
crystallization enhancement (Answer, p. 4).
Appellant argues that the Examiner has not met the three requirements of a prima facie
case as articulated in MPEP § 2143 (Brief, pp. 7-10). In response to what the Appellant calls the
“optimization of ranges” rejection, Appellant further argues that the prior art reference must
present either a broader or alternative range of variables which, Appellant believes, is required in
such a rejection (Brief, p. 9).
We do not find Appellant’s arguments convincing. A claim is unpatentable as obvious
“if the differences between the subject matter sought to be patented and the prior art are such that
the subject matter as a whole would have been obvious at the time the invention was made to a
person having ordinary skill in the art.” 35 U.S.C. § 103(a) (2002). Here, the “difference” relates
to the concentration levels of the Ni. Zhang describes the inclusion of Ni in the target and its
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