Appeal No. 95-3637
Application 07/968,736
patentability is based on the product itself.
[Citations omitted.]
The patentability of a product does not depend
on its method of production. In re Pilkington, 411
F.2d 1345, 1348, 162 USPQ 145, 147 (CCPA 1969). If
the product in a product-by-process claim is the
same as or obvious from a product of the prior art,
the claim is unpatentable even though the prior
product was made by a different process. In re
Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-93
(Fed. Cir. 1983); Johnson & Johnson v. W.L. Gore,
436 F.Supp. 704, 726, 195 USPQ 487, 506 (D. Del.
1977); see also In re Fessman, 489 F.2d 742, 180
USPQ 324 (CCPA 1974).
Thus, different manufacturing process steps do not serve
to distinguish resulting structures which are otherwise the
same. The appellants have failed to demonstrate that in the
absence of the process step of forming the select and floating
gates as the vertical residue of a conformal layer after the
horizontal portions of the conformal layer have been removed
by anisotropic etching, the claimed polysilicon select and
floating gates are any different from those of Lee.
For the foregoing reasons, we sustain the rejection of
claims 1, 3, 9, 11, 13 and 15.
As for dependent claims 2, 4, 10, 12 and 14, the examiner
is incorrect that the appellants have grouped them together
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