Appeal No. 95-2503
Application No. 08/024,883
region 25. Further, a conductive gate (aluminum wire 36) is
formed over the insulating layer 23. Accordingly, the subject
matter of claim 1 is met by Toyoshima, alone. Therefore, we
will sustain the rejection of claim 1 under 35 U.S.C. § 103 as
unpatentable over Jain and Toyoshima.
While we have shown how Toyoshima, alone, would make the
subject matter of instant claim 1 unpatentable, this is not a
new ground of rejection as Jain is merely cumulative to the
teachings of Toyoshima and anticipation is merely the epitome
of obviousness. In re Fracalossi, 681 F.2d 792, 794, 215 USPQ
569, 571 (CCPA 1982).
With regard to claim 5, appellant argues (page 20-
principal brief) that the claim calls for a gate including “an
insulating region formed therein” and that the examiner has
cited Mori for an EPROM device which includes an insulator to
isolate the floating gate from the control gate. Appellant
then states, “[a]ppellant agrees that claim 5 is broad enough
to encompass EPROM and EEPROM devices.” Thus, appellant
appears to admit that the examiner’s rejection of claim 5 is
proper. To the extent, appellant is merely saying that while
Mori does, indeed, disclose the limitations added by claim 5,
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