Appeal No. 2006-3039
Application No. 10/751,141
24 USPQ2d 1443, 1444 (Fed. Cir. 1992). If that burden is met, the burden then shifts to
the applicant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and the
relative persuasiveness of the arguments. See Id.; In re Hedges, 783 F.2d 1038, 1039,
228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ
785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143,
147 (CCPA 1976).
Independent claims 17 and 22 recite limitations commensurate to those
previously discussed with respect to claim 12 – namely disposing polysilicon material
within cavities formed in the isolation oxide region. Although the examiner adds
Tsuchiaki to Michejda, Tsuchiaki does not cure the deficiencies of Michejda that we
noted previously.2 Accordingly, the obviousness rejection of claims 13-25 over
Michejda and Tsuchiaki is also not sustained.
In summary, we have not sustained the examiner's rejection with respect to any
of the claims on appeal. Therefore, the decision of the examiner rejecting claims 12-25
is reversed.
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