Appeal 2006-2449
Application 10/221,869
Funayama discloses embodiments wherein oxygen may be present in the
sputtering atmosphere, this does not negate the embodiments wherein
oxygen is not in the sputtering atmosphere (col. 7, ll. 41-64).
For the above stated reasons, we hereby sustain the Examiner's § 102
rejections of claims 3 and 28 are being anticipated by either Akinaga or
Litvinov and of claims 3, 9-11, and 28 as being anticipated by Funayama.
We additionally sustain the § 102 and § 103 rejections of claims 4-7,
29-32, 34, and 35 over Funayama. There is no persuasive merit in
Appellants' argument that Funayama's process does not necessarily produce
non-oxidized grains and accordingly does not inherently produce such grains
wherein the spectral peak of an oxide of the magnetic metal is not
observable as recited by claims 4 and 29. As explained previously,
Funayama expressly discloses embodiments wherein the magnetic grain
compounds contain no oxygen. Under these circumstances, it is reasonable
to require that Appellants prove Funayama's afore-noted compounds do not
necessarily or inherently possess the non-oxidized and spectral peak features
of the here rejected claims. See In re Best, 562 F. 2d 1252, 1255-56 (Fed.
Cir. 1996). On this record, Appellants have proffered no such proof.
Finally, the § 103 rejection of claims 8 and 33 over Funayama will be
sustained since the only arguments advanced against this rejection are those
considered above and determined to be unpersuasive (Br. 11).
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