Appeal No. 95-2503
Application No. 08/024,883
instant invention was designed to avoid and that Toyoshima
does not show overlapped and non-overlapped portions of the
source and drain junctions “formed independently.”
These arguments are unpersuasive since we have found the
“independent” limitation to be a process limitation within a
product-by-process claim. Determination of patentability in
such a claim is based on the product itself, even though the
claim is limited and defined by a process, e.g., that certain
portions are formed independently, and, therefore, the product
in such a claim is unpatentable if it is the same as, or
obvious from, a product of the prior art, even if the prior
art product was made by a different process. In re Thorpe,
777 F.2d 695, 697; 227 USPQ 964, 966 (Fed. Cir, 1985).
Taking Toyoshima, for example, and applying it to instant
claim 1, this reference shows, in Figure 9, a transistor
comprising a substrate and a drain region 31 formed in the
substrate. The drain region has a heavily doped region 29, a
first lightly doped region 27 and a second lightly doped
region 25. Clearly, these first and second lightly doped
regions have some selected doping concentration and junction
depth values. The fact that the claim requires these doping
9
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