Appeal 2007-1526
Application 11/035,534
obvious to one of ordinary skill in the art to forego the post treatment step of
Haruyuki, with its function, especially where lower concentrations of acid
are employed in the hydrofluoric acid initial treatment step. This is because
one of ordinary skill in the art would expect less sharp edges and sharp
spines to be formed with the lower depths of any depressions formed when
using lower acid concentrations as taught/suggested by (Haruyuki 4, col. 1,
ll. 26-31). Consequently, we do not find Appellants arguments with respect
to the post treatment step option of Haruyuki to be persuasive of reversible
error in the Examiner’s obviousness rejection.
For the foregoing reasons and those stated in the Answer, we
determine that the Examiner has established a prima facie case of
obviousness in view of the reference evidence. Appellant has argued that
unexpected results have been demonstrated substantially throughout the
Brief and Reply Brief. Therefore, we begin anew and consider the evidence
for and against obviousness. See In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
The question as to whether unexpected advantages have been
demonstrated is a factual question. In re Johnson, 747 F.2d 1456, 1450-60,
223 USPQ 1260, 1263 (Fed. Cir. 1984). Thus, it is incumbent upon
Appellants to supply the factual basis to rebut the prima facie case of
obviousness established by the examiner. See, e.g., In re Klosak, 455 F.2d
1077, 1080, 173 USPQ 14, 16 (CCPA 1972). Appellants, however, do not
refer to an adequate factual showing in the specification to support a
conclusion of unexpected advantages. Appellants’ evidence of
nonobviousness is significantly short of being commensurate in scope with
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