Appeal No. 95-3557
Application No. 07/833,417
depth (x-y) less than the desired thickness (x) of the boss diaphragm structure, (3) growing an epitaxial
layer of second type doped silicon to a desired flexure section thickness (y) over the same surface of
the substrate that has been diffusion doped, and then (4) etching away the first-type doped silicon so to
leave the relatively thick boss sections joined by the relatively thin flexure sections, thus forming a boss
diaphragm structure of desired thickness (x) is in the appellants’ specification. Thus, we find that the
examiner has relied on impermissible hindsight in making his determination of obviousness. In re
Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992) (“It is impermissible to
engage in hindsight reconstruction of the claimed invention, using the applicant’s structure as a template
and selecting elements from references to fill the gaps.). Accordingly, the rejection of claims 1 through
18 under 35 U.S.C.
§ 103 as being unpatentable over Wise in view of Huster or Mauger is reversed.
NEW GROUND OF REJECTION - 37 C.F.R. § 1.196(b)
Claims 11-18 are rejected under 35 U.S.C. § 102(b) as anticipated by or, in the alternative,
under 35 U.S.C. § 103(a) as obvious over Huster.
Appellants’ claim 11 is in product-by-process form. Thus, the patentability of the claimed
invention is determined based on the product itself, not the method of making it. In re Thorpe, 777
F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
Instead of using an epitaxial layer n-type silicon grown on a p-type wafer to form a pn-junction
to manufacture membranes of identical and controlled thickness by means of electrochemical etching,
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