Appeal No. 98-0250
Application No. 08/201,963
of the applied prior art. As indicated infra, a new ground of
rejection of claims 9 through 14, 16 through 22 and 28 through
32 has been entered under the provisions of 37 CFR § 1.196(b).
Turning first to the obviousness rejection of claims 23
through 27, Kane discloses (Figure 1) all of the claimed cold
field emitter structure, except for a “conic frustrum” formed 3
by both the gap in the lens electrode and the gap in the gate
electrode. Jones discloses the use of a “conic frustrum” in a
gate electrode 47 of a cold field emitter, and Hughes
discloses the use of a “conic frustrum” in a lens electrode
20. The only teaching of record that uses a “conic frustrum”
opening through both the lens electrode and the gate electrode
of the same cold field emitter device is appellants’ disclosed
and claimed invention. Since the examiner is prohibited from
using appellants’ disclosed and claimed invention in an
obviousness rejection, we will reverse the 35 U.S.C. § 103
rejection of claims 23 through 27.
A prior art rejection can not be sustained if the
hypothetical person of ordinary skill in the art would have to
3 Webster’s New Collegiate Dictionary lists “frustum,” and
not “frustrum.”
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