Appeal No. 2005-0779
Application No. 09/802,084
subsequent to the aforementioned irradiating step. In this
regard, the appellants explain that “[n]o additional annealing
step is required in the Burnham method because the whole
structure has already been heated to this high temperature”
(brief, page 5).
The appellants are unquestionably correct that Burnham
teaches laser beam irradiation for the purpose of providing
disordered areas or patterns (e.g., see lines 13-32 in column 3,
lines 13-39 in column 5, the paragraph bridging columns 5 and 6,
lines 38-58 in column 6 as well as patent claims 1 and 8 in
columns 7 and 8 respectively). The examiner does not identify,
and we do not independently find, any disclosure in the Burnham
patent of generating defects as required by the claim under
review. Significantly, the answer contains no acknowledgment of,
much less rebuttal to, the argued distinction between generating
defects as claimed by the appellants versus creating a disordered
pattern as taught by Burnham. Although he does not say so
expressly, the examiner may consider patentee’s disordered areas
to be equivalent to the here claimed defects. Assuming this to
be the case, the Section 102 rejection before us still would be
deficient in that the examiner has proffered no evidence of any
kind to show such equivalency.
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