Appeal 2006-2992
Application 10/073,710
directed to the process of claim 1 (Br. 14). Appellants’ argument is not
persuasive since the teachings of Herb would have been recognized as
applicable to the similar plasma CVD process of Gruen by one of ordinary
skill in this art.
The Examiner has identified a clear motivation or suggestion to
combine the references to Gruen and Asmussen (Answer 3-4). We note that
Appellants do not dispute the Examiner’s identified motivation or suggestion
for combining the references (see the Brief in its entirety).
For the foregoing reasons and those stated in the Answer, we
determine that the Examiner has established a prima facie case of
obviousness in view of the reference evidence. Based on the totality of the
record, including due consideration of Appellants’ arguments and evidence,
we determine that the preponderance of evidence weighs most heavily in
favor of obviousness within the meaning of § 103(a). Therefore, we affirm
all rejections on appeal based upon § 103(a).
THE REJECTIONS FOR OBVIOUSNESS-TYPE DOUBLE
PATENTING
Appellants do not contest the Examiner’s rejections for obviousness-
type double patenting other than to vaguely argue that the claimed invention
is “not disclosed or suggested or claimed in these references” (Br. 18; see
the Answer 11). Accordingly, we summarily affirm the rejection of claims
1-5, 8-12, 14-17, and 19 under the judicially created doctrine of
obviousness-type double patenting over claims 1, 2, and 4 of Asmussen ‘668
in view of Gruen, adopting the Examiner’s factual findings and conclusion
of law as set forth on page 8 of the Answer.
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