Appeal No. 96-1449
Application 08/188,630
film 12 and a cell plate 13 (figure 1H). Bae discloses a
stacked capacitor which comprises a hollow storage electrode
22 of polysilicon layers 19, 21, and 23 (figure 3) around an
oxide core 20 (figure 4F), the storage electrode being
covered with a dielectric film 24 and then with a plate
electrode layer 25 (figure 3). Bae discloses that several
capacitors can be manufactured at the same time (col. 4,
lines 23-35).
Although no case law support has been cited for the
examiner's position, we interpret the statement that "[i]t
does not matter how the enlarging layer is made, the final
product is still the same" (Paper No. 10, page 3; EA4) to be
product-by-process-type reasoning. The patentability of
product-by-process claims is discussed in In re Thorpe,
777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985):
[E]ven though product-by-process claims are limited by
and defined by the process, determination of
patentability is based on the product itself.
[Citations omitted.]
The patentability of a product does not depend on
its method of production. 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 product was made by a different
process. [Citations omitted.]
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