Appeal No. 95-2928
Application No. 07/769,185
claimed subject matter because Lineback does not clearly
suggest that the further spaced apart portions of the
source/drain regions do not contain the first
conductivity type dopant used to form the halo regions.
The instant claims are drawn to structure, rather
than to a method of fabricating the structure and, so,
normally, we would not be concerned with a mask
implantation step which results in the claimed structure
where the step apparently forms no part of the claim and
the prior art apparently discloses the same structure.
Determination of patentability in “product-by-process”
claims is based on the product itself, even though the
claims may be limited and defined by a process, and thus
the product in such claims is unpatentable if it is the
same as, or obvious from, a product of the prior art,
even if the prior product was made by a different
process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964,
966 (Fed. Cir. 1985).
However, the claims before us recite a specific
characteristic of the structure, i.e., that the portions
of the source/drain regions which are spaced further from
the gate electrode do not contain the first conductivity
type dopant used to form the halo regions. This
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