Appeal No. 96-3475
Application 08/245,775
is no side by side comparison or other data in the record establishing the extent to which the
claimed process “minimizes” the memory doping.
Although appellants have grouped product-by-process claim 13 with independent process
claim 1, we observe that the examiner correctly separately treated the subject matter of this claim
in the answer at pages 4 and 5. Since this claim also provides for a broad range of carrier
19 -3 14 -3
concentration ranging “from about 1 x 10 cm to about 1 x 10 cm in the Group II/Group VI
semiconductor material”, the claim covers prior art indium-doped Group II/Group VI
semiconductor material having a carrier concentration in the range of 10 cm . Thus, it is16 -3
apparent that this claim does not define patentable subject matter.
In summary, we agree with the examiner’s conclusion that the claimed subject matter on
appeal would have been obvious to a person of ordinary skill in the art within the meaning of 35
U.S.C. § 103. However, since we have relied on the Gedridge patent and a more comprehensive
view of the prior art admissions and have provided a different rationale than that of the examiner,
we denominate our affirmance of the rejection as involving a new ground of rejection. 37 CFR §
1.196(b).
In addition to affirming the examiner’s rejection of one or more claims, this decision
contains a new ground of rejection pursuant to 37 CFR § 1.196(b)(amended effective Dec. 1,
1997, by final rule notice, 62 Fed. Reg. 53,131, 53,197 (Oct. 10, 1997), 1203 Off. Gaz. Pat. &
Trademark Office 63, 122 (Oct. 21, 1997)). 37 CFR § 1.196(b) provides, “A new ground of
rejection shall not be considered final for purposes of judicial review.”
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