Appeal 2007-0488
Application 10/071,809
determine that one of ordinary skill in this art would have expected similar
results (i.e., zero % etching) for oxygen concentrations greater than 23% in
the process of Nojiri. See Fig. 2 of Nojiri at page 1792. Appellant admits
that the process as claimed is “inconsistent” with the “projection” or
extrapolation of the data in Fig. 2 (Reply Br. 4).
Additionally, Appellant has not explained how the claimed objective
(a selective etch rate of at least 30) can be met by following the process as
claimed. The only example in the Specification does not follow the process
as recited in claim 1 on appeal, but includes a “breakthrough etch” using
carbon tetrafluoride (Specification 7:17-19).
For the foregoing reasons, we determine that the Examiner has
established a prima facie case of lack of enabling disclosure, which case
Appellant has not adequately rebutted by arguments or evidence. Therefore,
we affirm the sole rejection on appeal.
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