Appeal No. 2006-1320
Application No. 10/024,958
Kornblit, and the “comprising” language of the appealed claims
does not preclude the use of nitrogen in the etchant mixture.
Regarding the operating parameters recited in the
independent claims, such as molar ratio between carbon monoxide
and chlorine gas and chamber pressure, appellants have not
demonstrated, let alone asserted, any criticality with respect to
these parameters. It is well settled that where patentability is
predicated upon a change in a condition of a prior art
composition or process, such as a change in concentration,
temperature, pressure or the like, the burden is on the applicant
to establish with objective evidence that the change is critical,
i.e., it leads to a new, unexcepted result. In re Woodruff, 919
F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In re
Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As a final point, we note that appellants base no argument
upon objective evidence of nonobviousness, such as unexpected
results, which would serve to rebut the inference of obviousness
established by the examiner.
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