Appeal No. 2006-0367
Application No. 10/353,506
b. Obviousness Determination
Having determined what subject matter is being claimed, the next inquiry is
whether the subject matter would have been obvious. The question of obviousness is
"based on underlying factual determinations including . . . what th[e] prior art teaches
explicitly and inherently. . . ." In re Zurko, 258 F.3d 1379, 1383, 59 USPQ2d 1693, 1696
(Fed. Cir. 2001) (citing Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459,
467 (1966); In re Dembiczak, 175 F.3d 994, 998, 50 USPQ 1614, 1616 (Fed. Cir. 1999);
In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995)). Of course,
"'[e]very . . . reference relies to some extent upon knowledge of persons skilled in the art
to complement that [which is] disclosed. . . .'" In re Bode, 550 F.2d 656, 660, 193
USPQ 12, 16 (CCPA 1977) (quoting In re Wiggins, 488 F.2d 538, 543, 179 USPQ 421,
424 (CCPA 1973)). Those persons "must be presumed to know something" about the
art "apart from what the references disclose." In re Jacoby, 309 F.2d 513, 516, 135
USPQ 317, 319 (CCPA 1962).
Here, we have found that Kohl forms a cover over a sacrificial layer, (FOF 17),
and then thermally decomposing the sacrificial layer. (FOF 19.) We have further found
that Forester and Chang describe electron beam processing and plasma treatment,
respectively, (FOF 22, 29), either of which would have densified the cover. (FOF 25,
31.) We have also found motivation to perform the beam processing and plasma
treatment as summarized regarding the first two points of contention, supra. We further
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