Appeal 2007-0127
Application 09/749,916
1 simple test was performed, and that the results would apply to the electrodes
2 when used in a “real” process.
3 Moreover, the significance of the tested showerhead electrodes having
4 an electrical resistivity “in the range of from about 0.005-0.02 ohm-cm” is
5 unexplained. Some electrodes may have had resistivities as large as four
6 times greater than others. The declarant has not explained what the specific
7 restivities were, how they were measured, or whether these differences had
8 any impact. In sum, the experiments appear to lack a control. See In re
9 Dunn, 349 F.2d 433, 439, 146 USPQ 479, 483 (CCPA 1965) (“While we do
10 not intend to slight the alleged improvements, we do not feel it an
11 unreasonable burden on Appellants to require comparative examples relied
12 on for non-obviousness to be truly comparative. The cause and effect sought
13 to be proven is lost here in the welter of unfixed variables.”). We therefore
14 are not persuaded by these results.
15 (b) Increased Lifetime and Operating Power
16 Mr. Hubacek testifies that the claimed showerhead electrode allows
17 longer production times before replacement of the electrode is needed. He
18 also testifies that this “unexpectedly provides better thermal uniformity” and
19 allows an increase in the maximum amount of power that the showerhead
20 electrode can be operated at without failure. (Hubacek Declaration,
21 paragraph 3).
22 Mr. Hubacek also testifies that “showerhead electrodes having a
23 thickness of 0.25 inches or greater can be operated at significantly higher
24 power levels than thinner electrodes” (Hubacek Declaration, p. 3, ll. 10-11).
19
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