Appeal No. 2006-2982 Page 19
Application No. 10/458,112
nanoparticle 103 with respect to electrodes 101 and 102, and the resultant
“resistive-high” or “resistive-low” states [col. 5, lines 29-33].
After carefully considering the evidence before us, we find that to
affirm the examiner on this record would require speculation on our part.
Therefore, we agree with appellants that the examiner has failed to meet
his/her burden of establishing a prima facie case of anticipation with respect
to independent claim 1 and also with respect to independent claims 22, 25
and 38 that recite essentially equivalent limitations. Accordingly, because
each limitation of these independent claims is not fairly disclosed by the Sun
reference, we will reverse the examiner’s rejection of claims 1, 4, 8-10, 15,
22, 23, 25, 26 and 38 as being anticipated by Sun.
OBVIOUSNESS REJECTIONS
Claims 5 and 6 (Rizzo)
IV. We consider next the examiner’s rejection of claims 5 and 6 as being
unpatentable over the teachings of Rizzo. We note that claims 5 and 6 each
depend upon independent claim 1. Because we have reversed the
examiner’s rejection of independent claim 1 as being anticipated by Rizzo,
we will also reverse the examiner’s rejection of dependent claims 5 and 6 as
being obvious over Rizzo.
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