Appeal 2006-2730
Application 10/415,631
met, the burden then shifts to the Appellants 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 In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992).
The Examiner's rejection essentially finds that Pelrine teaches every
claimed feature except for the waved area to have a rectangular profile. The
Examiner, however, refers to a passage within Pelrine stating that the
textured surface may comprise any non-uniform or non-smoothed surface
topography (Pelrine, col. 10, ll. 24-25). In view of this teaching, the
Examiner concludes that providing any shape for the waved area would have
been within the level of the skilled artisan and therefore obvious (Answer 3-
4).
Appellants argue that Pelrine forms the buckled surface by stretching
the polymer, applying the electrode, and then relaxing the polymer.
Appellants emphasize that even if this process were optimized as the
Examiner suggests, a rectangular profile with straight edges and 90 degree
corners would still not result (Reply Br. 5).
We will sustain the Examiner’s rejection of claim 17. As we
indicated previously, Pelrine forms the waved surface of the polymer by
either (1) stretching and subsequently relaxing the polymer to buckle the
surface, or (2) reactive ion etching (Pelrine, col. 27, l. 60 – col. 28, l. 8).
Even if we assume, without deciding, that a rectangular profile would not
result from stretching and relaxing the polymer as Appellants argue, this
argument is unavailing regarding Pelrine’s alternative process of forming the
waved surface by reactive ion etching.
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