Appeal No. 2005-2351
Application No. 09/904,112
(CCPA 1977). On this record, appellants have not met this
burden.
With regard to the rejection of claim 2, appellants argue
that Kunitomo does not teach or suggest oxidation by a gas plasma
treatment but appears to “teach away” from it (Brief, paragraph
bridging pages 7-8). This argument is not persuasive since
Kunitomo teaches that a thermal or plasma treatment at “about 400
°C.” produces a “disadvantageous” result as compared to a higher
temperature heat treatment that results in crystalline tantalum
oxide (col. 2, ll. 18-32). Therefore, Kunitomo does not teach
away from plasma treatments at higher temperatures as long as
crystallization of the tantalum oxide occurs. See In re Gurley,
27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994). We
further note that the question of whether a reference “teaches
away” from the claimed invention is inapplicable to an
anticipation analysis. See Celeritas Techs., Ltd. v. Rockwell
Int’l Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522 (Fed. Cir.
1998).
With regard to appellants’ arguments concerning the
rejection of claims 4, 6 and 37-39 (Brief, pages 8-9), we adopt
the examiner’s response and reasoning as set forth on pages 11
8
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