Appeal No. 2006-1545
Application 10/254,326
polycrystalline or amorphous material, it is assumed that the
technique is within the level of ordinary skill in the art.
However, where, as here, appellant is arguing that conventional
heterojunction devices are lattice matched single crystals, and
"[t]he polycrystalline heterojunction diode the Examiner imagines
is not taught in either reference, or in any reference of record,
and is not conventional" (Br9), some evidence is required. The
examiner also has not provided any evidence that the claimed
combination with the heterojunction diode could be made using
single crystals, and there is no suggestion in Zhang that it
would have been desirable to use single crystals. We conclude
that the examiner has failed to establish a prima facie case of
obviousness. The rejection of claims 42-46, 53, and 56 is
reversed. Fang does not cure the deficiencies of Zhang and
Shimogaki and, therefore, the rejection of claims 47-52, 54, and
55 is also reversed.
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