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 5Page: Previous 1 2 3 4 5 6 7 Next
Last modified: September 9, 2013