Appeal No. 1999-2578
Application No. 08/811,363
We turn, now, to the rejection of claims 19-34 under 35 U.S.C. § 103 as
unpatentable over Korman.
At the outset, we note that while the statement of rejection relies only on the Korman
reference, the examiner appears to rely, at least in part, on U.S. Patent No. 5,606,191 to
Wang. See the examiner’s reference to Figure 15 of Wang, at page 6 of the answer, in
responding to appellants’ arguments. We will not consider the Wang reference since there
would appear to be no excuse for not including Wang in the statement of rejection if the
examiner intended to rely on this reference as a basis for the rejection. In re Hoch, 428
F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970).
The examiner’s position is that Korman discloses a power MOSFET (Figure 1)
having a conductive insulated gate layer 132, an elongated window having two elongated
edges and two short edges, side wall spacers 142, heavily doped elongated
deep body regions 119, two elongated channel regions under the gate layer and two
elongated source regions 120. The examiner baldly concludes therefrom, that it “would
have been obvious that Korman teaches the claimed device” [answer-page 5].
Interestingly enough, the examiner points to no difference between the disclosure of
Korman and the instant claimed subject matter. While an anticipatory reference is also
proper under 35 U.S.C. § 103, as anticipation is the epitome of
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