Appeal 2007-2134
Application 10/311,880
a rather wide range of temperatures, including temperatures up to hundreds
of degrees Centigrade (Specification 7: 25 – 8: 26). We note that the heater
(12) of Kuibira is formed from a heater circuit pattern formed on a sintered
ceramic surface making up part of a gas supply unit (Kuibira, col. 8, l. 35 -
col. 10, l. 5).1 As evidenced by the Examples furnished in Kuibira, the
heater is capable of heating the gas shower (supply) unit to 600°C.
Furthermore and while not required by Appellants’ argued claims 3 and 4,
Kuibira discloses that a temperature sensor and adjustment module can be
employed to control the gas shower (supply) temperature (Kuibira; col. 9, l.
65 – col. 10, l. 5). Given that disclosure of Kuibira, the Examiner’s position
that the heater of Kuibira is capable of functioning as claimed is reasonable.
On this record, Appellants’ unsubstantiated arguments respecting the
incapability of the heater described by Kuibira to function as claimed are not
persuasive of error in the Examiner’s anticipation rejection. In this regard, it
is well-settled that an Examiner may shift the burden to Appellants by
showing how a prior art structure substantially corresponds to a claimed
structure such that it would be reasonable to presume that the prior art
structure would also be expected to possess a claimed function. See In re
Schreiber, 128 F.3d at 1477-78, 44 USPQ2d at 1432.
To the extent that Appellants are also asserting that the heater of
Kuibira is not located as claimed; that is, on a substrate side of the gas
shower (supply) unit of Kuibira (Br. 4), we disagree with that argument. In
this regard, we note that Appellants do not point to the claim term substrate
1 While representative claim 3 and separately argued claim 4 are not so
limited, we note that Appellants disclose the use of an electrical (current
flow) heater (15) sandwiched between ceramic plates (Specification 7:18 -
8: 1 and Figs. 3 and 4).
8
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