Appeal 2007-1269
Application 10/636,468
material removal rate is then used to project a
remaining polishing time to remove a remaining
desired thickness portion of the oxide layer.
(Liu, paragraph [0027].)
PRINCIPLES OF LAW
All timely filed evidence and properly presented argument is
considered by the Board in resolving an obviousness issue on appeal. See
In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
In the examination of a patent application, the Examiner bears the
initial burden of showing a prima facie case of unpatentability. Id. When
that burden is met, the burden then shifts to the applicant to rebut. Id.; see
also In re Harris, 409 F.3d 1339, 1343-44, 74 USPQ2d 1951, 1954 (Fed.
Cir. 2005) (finding rebuttal evidence unpersuasive). If the applicant
produces rebuttal evidence of adequate weight, the prima facie case of
unpatentability is dissipated. In re Piasecki, 745 F.2d at 1472, 223 USPQ at
788. Thereafter, patentability is determined in view of the entire record. Id.
However, on appeal to the Board it is an appellant's burden to establish that
the Examiner did not sustain the necessary burden and to show that the
Examiner erred -- on appeal we will not start with a presumption that the
Examiner is wrong.
"Section 103 forbids issuance of a patent when 'the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727,
7
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