Appeal 2007-0127
Application 09/749,916
1 electrode must have resistivity. The Examiner relied upon Murai as teaching
2 a suitable electrode (Answer, p. 5, ll. 1-3) in that Murai teaches that the
3 “specific resistance of the silicon single crystal, in order to be used as
4 electrode (2) [i]s, normally 0.1Ω-cm or less” (Translation, p. 5, ll. 8-10).
5 The two references describe parallel plate plasma electrodes, and Murai
6 teaches one of ordinary skill in the art what an electrode resistivity should
7 be. We observe that the Appellants have not challenged the Examiner’s
8 finding that 0.1 ohm-cm is a normal resistivity for an electrode to have.
9 We find that the evidence supports a finding that one of ordinary skill
10 in the art would have used an electrode having a normal resistance for this
11 particular application. Murai teaches such a resistance in the same art. One
12 of ordinary skill in the art would have found the implicit motivation to use
13 Murai in the knowledge common in the art.
14 We therefore agree with the Examiner’s conclusion that the
15 combination would have been obvious. See, e.g., DyStar Textilfarben
16 GmbH & Co. Deutschland KG v. C. H. Patrick Co., 464 F.3d 1356, 1367, 80
17 USPQ2d 1641, 1650 (Fed. Cir. 2006) (“Our suggestion test is in actuality
18 quite flexible and not only permits, but requires, consideration of common
19 knowledge and common sense”); Alza Corp. v. Mylan Labs., Inc., 464 F.3d
20 1286, 1291, 80 USPQ2d 1001, 1004 (Fed. Cir. 2006) (“There is flexibility in
21 our obviousness jurisprudence because a motivation may be found implicitly
22 in the prior art. We do not have a rigid test that requires an actual teaching to
23 combine …”), cited with approval in KSR Int’l v. Teleflex Inc., 127 S. Ct.
24 1727, 82 USPQ2d 1385, 1398 (2007)
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