Appeal 2006-2992
Application 10/073,710
included amounts of oxygen or nitrogen outside the scope of the claims on
appeal.
Appellants argue that evidence in their Specification discloses results
which were not shown or suggested by the prior art references (Br. 13).
Therefore, we begin anew and consider the evidence of non-obviousness
against the evidence of obviousness. See In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
We do not find Appellants’ evidence persuasive of non-obviousness
for the following reasons. Appellants refer to Figures 7A-7F and 11-11A as
establishing a growth rate increase without substantial increase in surface
roughness for trace levels of nitrogen (Br. 12-13). However, the burden is
on Appellants to establish that these results were truly unexpected,
commensurate in scope with the claimed subject matter, and involved
comparisons with the closest prior art. See In re Klosak, 455 F.2d 1077,
1080, 173 USPQ 14, 16 (CCPA 1972); Ex parte Gelles, 22 USPQ2d 1318,
1319 (Bd. Pat. App. & Int. 1992). We determine that Appellants have not
met this burden. Appellants have not established that the results, which vary
in only a small range, would have been considered unexpected by one of
ordinary skill in this art. Furthermore, the results are under one set of
specific conditions while claim 1 on appeal is not so limited. We note that
claim 1 may be “essentially free” of oxygen or nitrogen, while the results are
exclusive to nitrogen levels.
The Examiner has additionally applied Herb against claims 13 and 18
to show the benefits of using molybdenum as a substrate holder in a plasma
CVD process (e.g., Answer 4). Appellants admit that Herb teaches that
molybdenum is known as a substrate holder but argues that Herb is not
7
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: September 9, 2013