Appeal No. 2006-3405
Application No. 10/631,858
Appellants also argue that in the examples described in Nakamura to
implement patterning (col. 4, ll. 42-48), the surface of the “first electrode layer” as
claimed -- or the upper surface of layer 1 as shown in Figure 1(a) of the reference -
- would not be exposed during the patterning and thus would not be terminated by
fluorine atoms.
The examiner responds that Nakamura leaves the choice of patterning up to
one of ordinary skill in the art, and that two of three ways that Nakamura describes
for patterning can be done with exposure of the upper surface to the etchant. The
examiner refers to Hwang4, which describes removing a mask during etching of a
platinum electrode layer at column 6, lines 26 to 32, and to Fukaya, which teaches
removing a photoresist layer (i.e., a mask) before etching at column 3, lines 42 to
48. According to the examiner, either way that is taught by Hwang or Fukaya
would expose the surface of the layers to the etchants. (Answer at 6.)
We agree with appellants, for substantially the reasons expressed in the
briefs, that the rejection fails to establish a prima facie case of obviousness with
4 Cf. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA
1970) (“Where a reference is relied on to support a rejection, whether or not in a
minor capacity, there would appear to be no excuse for not positively including the
reference in the statement of rejection.”).
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