Appeal No. 2006-1545
Application 10/254,326
It is argued that the formation of such a device is not obvious
from the cited references because nothing in Zhang teaches or
suggests the utility or desirability of the use of catalytic or
laser annealing techniques, or the need to increase the grain
size in the polycrystalline diode of Zhang by any means (RBr3).
It is argued that these techniques are not taught in Shimogaki,
which uses epitaxial growth that is impossible in Zhang (RBr4).
"Appellants respectfully maintain that the mere existence of
techniques does not render obvious their use in an unrelated
context." (RBr4).
We agree with appellant that there is no suggestion in the
references to modify Zhang as proposed by the examiner. The
possibility that Zhang could be modified to provide a single
crystal device using techniques that are not taught or suggested
in either of the references is mere speculation, which is
insufficient to support an obviousness conclusion. We cannot
uphold an obviousness determination based on evidence that is not
of record and not applied in the rejection.
The examiner states that it was well known in the art that
the Zhang process could be easily modified to provide a
monocrystalline device (EA6, three places). Again, there is no
evidence cited for this finding and nothing in Zhang suggests
that it should be done.
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