Appeal No. 95-3637
Application 07/968,736
specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d
1320, 1322 (Fed. Cir. 1989); In re Yamamoto, 740 F.2d 1569,
1571, 222 USPQ 934, 936 (Fed. Cir. 1984); In re Pearson, 494
F.2d 1399, 1404, 181 USPQ 641, 645 (CCPA 1974); In re Prater,
415 F.2d 1393, 1404, 162 USPQ 541, 550 (CCPA 1969). In our
view, it is reasonable for the examiner to regard select gate
30 and floating gate 10 in Lee as sidewalls to the vertical
silicon oxide surface existing therebetween, in the absence of
evidence sufficient to demonstrate for the term "sidewall" an
established meaning in the art which does not permit or allow
the simple interpretation by the examiner.
Finally, even if the appellants have established that the
term "sidewall" has the meaning urged on page 4 of their
brief, and that that is the only reasonable interpretation of
the term, it would not help their case, since structural
claims generally are not limited by process steps used in the
making of the structure. As is specifically stated by the
Federal Circuit in In re Thorpe, 777 F.2d 695, 697, 227 USPQ
964, 966 (1985):
[E]ven though product-by-process claims are limited
by and defined by the process, determination of
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