Appeal 2007-1055
Application 10/831,012
relies upon Gotro for teaching the separation distance between conductive
elements in separate layers, we agree with the Examiner that one of ordinary
skill in the art would have found it obvious to determine the optimum
spacing between adjacent transmission lines and the thickness of the
conductive element. It is well settled that where patentability is predicated
upon a change in a condition of a prior art feature, such as a change in size,
concentration, or the like, the burden is on the applicant to establish with
objective evidence that the change is critical, i.e., it leads to a new,
unexpected result. In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934,
1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235
(CCPA 1955).
In the present case, Appellants’ specification attaches no particular
criticality to either the distance between adjacent transmission lines or the
thickness of the thermally conductive element. The Specification, at page
11, simply prefers a thickness within the claimed range for the thermally
conductive element, which preference would seem to allay any suggestion of
criticality. Similarly, the Specification, at page 14, only states that the
distance between adjacent transmission lines can be in the range recited in
the appealed claims. While Appellants’ Reply Brief points to figure 4 of the
Specification as evidence of criticality, the Specification merely
demonstrates that a thermally conductive element having a thickness of 1
micron is superior to having no thermally conductive element with respect to
reducing the maximum temperature reached. The Specification provides no
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