Appeal No. 95-2599
Application 07/983,931
ordinary skill in the art who sets out to solve the problem and
who had before him in his workshop the prior art, would have been
reasonably expected to use the solution that is claimed by the
Appellants. In view of the Sato teaching of forming a single
layer of polycrystalline silicon with the upper and lower
portions of the layer having different physical features such as
grain size or concentrations of impurities and then forming a T-
shaped gate in a single step of etching, those skilled in the art
would have been led to a "a shaped conductive layer formed by
etching" as recited in Appellants' claim 25.
Furthermore, we find that Appellants' claim 25 recites
a product by process. Our reviewing court states in In re
Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-93, (Fed. Cir. 1983)
that “[w]here a product-by-process claim is rejected over a prior
art product that appears to be identical, although produced by a
different process, the burden is upon the applicants to come
forward with evidence establishing an unobvious difference
between the claimed product and the prior art process.” In In re
Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985),
our reviewing court also states “[i]f the product in a product-
by-process claim is the same as or obvious from a product of the
10
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007