Appeal 2007-1522
Application 10/631,698
553 (CCPA 1969); In re Michalek, 162 F.2d 229, 74 USPQ 107 (CCPA
1947). Also, one of ordinary skill in the art would not have been wed to the
use of H2O2 as an oxidizing agent in the polishing slurry of Kumar. Kumar
teaches that an oxidizing agent such as H2O2, can be added for polishing
metals, thereby indicating that other oxidizing agents may be used in
combination with abrasive particles of MoO2, such as the oxidizing agents
disclosed by Canaperi and presently claimed, namely, nitric acid, potassium
iodate, and potassium permanganate. We are confident that one of ordinary
skill in the art would have had the wherewithal to determine which particular
oxidizing agents are compatible with MoO2.
We now turn to the Examiner’s § 103 rejection over Chamberlin in
view of Kambe and Canaperi. Since we agree with Appellants that “the
Examiner’s rejections in this instance are essentially the same as those based
on Canaperi and Kumar” (principal Br. 19, sixth para.), it follows that we
will also sustain this rejection. We find no merit in Appellants’ argument
that “Kambe teaches away from the present invention because it does not
disclose an oxidizing agent” (principal Br. 22, second para.). Kambe’s
silence with respect to an oxidizing agent is not tantamount to a teaching that
an oxidizing agent should not be present in the polishing composition.
Chamberlin and Canaperi, as well as Kumar, evidence that it was known in
the art to employ an oxidizing agent in a composition used for chemical-
mechanical polishing, and Appellants have not argued otherwise. For sure,
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