Appeal 2006-2353
Application 09/785,858
Appellant’s arguments directed to the claim features noted above, we adopt
the Examiner’s reasoning as our own. We add the following discussion to
address an additional issue raised by Appellant’s arguments.
Appellant improperly attacks each of the references individually,
instead of addressing the Examiner’s rejection based upon the combination
of references. Evidence that Appellant has improperly attacked the
references individually is found in Appellant’s arguments that a particular
reference fails to disclose a claim feature which is different than the claim
feature the Examiner relied on the reference to show. An applicant cannot
show non-obviousness by attacking references individually where, as here,
the rejections are based on a combination of references. In re Keller, 642
F.2d 413, 426, 208 USPQ 871, 882 (CCPA 1981).
For example, Appellant indicates that the Examiner relies on Colgan
as “suggesting photopatterning of layers” (Br. 9). However, instead of
properly arguing the combination of Colgan’s photopatterning with the
method of forming an aluminum line of Besser in view of Shan and Marieb,
Appellant improperly attacks the Colgan patent individually and argues that
Colgan does not suggest “formation of a first layer comprising aluminum
over an insulating layer and filling an opening which extends through the
insulating layer” (i.e., Appellant argues claim features (1) and (2) instead of
claim feature (5), which the Examiner relied on Colgan to disclose as part of
the combination) (Br. 9).
From the foregoing, Appellant has not successfully carried his burden
of rebutting the Examiner’s prima facie case. In re Kumar, 418 F.3d 1361,
1366, 76 USPQ2d 1048, 1051 (Fed. Cir. 2005) (explaining, once the
Examiner has established a prima facie case, the burden falls on Appellant to
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