Appeal 2006-2150
Application 09/995,927
Accordingly, we adopt these findings, conclusions, and rebuttals as our own.
We add the following comments for emphasis.
It is the Examiner’s basic position that, in the strain-balanced
GaAsP/InGaAs quantum well solar cells of Ekins-Daukes, a period of one
tensile strained layer and one compressively strained layer will necessarily
and inherently exert “substantially no shear force on a neighbouring
structure” (claim 1) as required by the appealed claims. The Appellants
believe that the Examiner’s position is without support and is contrary to the
Rule 1.132 Declaration by Dr. Neal G. Anderson filed July 23, 2003.
This belief is without merit as fully explained by the Examiner, for
example, in the Supplemental Examiner’s Answer mailed December 23,
2005. As detailed therein, the Examiner’s position is reasonably supported
by fact and technical reasoning (id. at 5 and 6). See Ex parte Levy,
17 USPQ2d 1461, 1463-64 (Bd. Pat. App. & Int. 1990). Indeed, the
Examiner’s position is reinforced, while the Appellants’ contrary view is
undermined, by the fact that the appealed claims define the “substantially no
shear force” limitation as resulting from layer compositions which include
those of Ekins-Daukes. For example, compare the compositions defined by
appealed claims 12 and 13 with the compositions disclosed on page 4195 of
the Ekins-Daukes reference.
Under the circumstances expressed above and in the Answers, the
Examiner has established a prima facie case for his inherency position. See
In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir.
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