Appeal 2007-0488
Application 10/071,809
claimed. See In re Mayhew, 527 F.2d 1229, 1233, 188 USPQ 356, 358
(CCPA 1976).
Applying these legal principles to the factual findings of this appeal,
we determine that the Examiner has met the initial burden by presenting
Nojiri, which is sufficient evidence to question the truth or accuracy of
Appellant’s supporting disclosure. We further determine that the burden of
proof has been shifted to Appellant, and Appellant has not met this burden.
Our reasons follow.
Appellant repeatedly contends that the only evidence that can be
presented by the Examiner to doubt the truth or accuracy of the supporting
disclosure must be examples, i.e., concrete experimental data (Reply
Br. 4-5). However, we find no limitation for the type of evidence needed by
the Examiner to substantiate a rejection for lack of enabling disclosure, i.e.,
actual examples vs. interpolation. See In re Marzocchi, supra. Contrary to
Appellant’s arguments (Reply Br. 3), we determine that Fig. 2 of Nojiri
shows that the etch rate of WSix is at zero (nm/min) at approximately 23%
oxygen concentration (see the “black circle” at the end of the WSix graph
curve). Since Nojiri teaches that the “etching suddenly stops” for poly-Si at
oxygen concentration above 25%, and this corresponding “white circle” is
higher in etching value that the “black circle” representing the value for
WSix at the end of the graphed curve, we determine that this “black circle”
must also represent a stop of etching or zero% etch. In view of the teachings
of Nojiri regarding the process at 23% oxygen concentration, and the
interpolation of the results for 25% or greater oxygen concentration, we
determine that the Examiner has met the initial burden of establishing doubt
for the truth or accuracy of Appellant’s supporting disclosure. We
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