Appeal 2007-2384
Application 10/943,424
U.S.C. § 103, it is incumbent upon the Examiner to establish a factual basis
to support the legal conclusion of obviousness. See In re Fine, 837 F.2d
1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the
Examiner must make the factual determinations set forth in Graham v. John
Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966). Furthermore,
“‘there must be some articulated reasoning with some rational underpinning
to support the legal conclusion of obviousness’ . . . . [H]owever, the analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR,
127 S. Ct. at 1741, 82 USPQ2d at 1396 (quoting In re Kahn, 441 F.3d at
988, 78 USPQ2d at 1336). Further, as pointed out by our reviewing court,
we must first determine the scope of the claim. “[T]he name of the game is
the claim.” In re Hiniker Co., 150 F.3d 1362, 1369, 47 USPQ2d 1523, 1529
(Fed. Cir. 1998). Therefore, we look to the limitations as recited and
disputed in independent claim 1.
Appellants dispute the Examiner's contention that the combination of
Ryu and Bae on the grounds that the polysilicon seed layer of Ryu may be
replaced with an amorphous silicon layer by Bae. Appellants contend that
Ryu teaches away from substituting amorphous silicon for polysilicon as the
seed layer (Brief 9.)
Appellants maintain that Ryu teaches away from using amorphous
silicon as layer 106 because amorphous silicon would prevent germanium
from diffusing. Appellants further maintain that because Ryu has expressly
stated the desire to "expedite diffusion of germanium" with the polysilicon
layer, changing the polysilicon layer to a layer that would "prevent
germanium from diffusing" would contradict the express purpose of Ryu.
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