Appeal No. 95-0543
Application 08/008,734
invention as recited in claim 1. Therefore, we sustain the
rejection of claim 1 as anticipated by the disclosure of Potter.
Claims 9 and 10 depend from claim 1 and recite that the
insulating and conducting layer of claim 1 is polycrystalline
carbon and monocrystalline carbon, respectively. The examiner
has rejected these claims under 35 U.S.C. § 103 as unpatentable
over the teachings of Potter. According to the examiner, the
diamond disclosed in Potter is either monocrystalline or
polycrystalline carbon. The examiner provides a reasoned
analysis as to why the artisan would have found it obvious to use
either form of crystalline carbon [answer, pages 5-6].
Appellants argue that the type IIa diamond of Potter is believed
to be a monocrystalline carbon, and there is no suggestion in
Potter to use a polycrystalline carbon [brief, page 8].
Although we would have preferred that the examiner cite a
reference in support of the position that a polycrystalline
carbon would have been obvious to the artisan in view of Potter,
we nevertheless find that the record supports the examiner’s
finding of this fact. Every crystalline carbon is presumably
either monocrystalline or polycrystalline carbon. The scope of
claim 9 includes any polycrystalline carbon. Given that a
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