Appeal 2006-3124
Application 10/251,179
OPINION
Claims 8, 9, and 18-20 are rejected under 35 U.S.C § 103(a) over
Tanaka.
The Examiner relies on Tanaka for a disclosure of an adjustable
mechanism for adjusting a gap comprising a rotatable ring (26) with at least
three projections extending in a direction of its axis and a stage (24) with
conforming projections and steps disposed over it. Answer 3. The Examiner
concedes that stage (24) does not appear to have an explicit hole, but
maintains that it is “clear from the drawing that the lower conforming part of
the stage with the projections and steps is of the shape of a ring,” with the part
that holds a substrate being “a plate fixed to the top of the ring.” Answer 3.
The Examiner maintains that it would have been obvious to one of ordinary
skill in the art at the time of invention to use a part without a continuous top,
i.e., more like a ring with an explicit hole, as the stage (24). Answer 4.
The initial burden is on the Examiner to produce evidence sufficient to
support a showing of obviousness, and only then does the burden shift to the
applicant. In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788, (Fed.
Cir. 1984). Appellants argue, and we agree, that the Examiner has failed to
provide the requisite evidentiary support to establish a prima facie case of
obviousness. See In re Kahn, 441 F.3d 977, 985-86, 78 USPQ2d 1329, 1335
(Fed. Cir. 2006). Like Appellants, we fail to see any basis for the Examiner’s
finding that stage (24) could be disassembled so as to provide two separate
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