Appeal No. 1997-2444
Application 08/248,941
Spada, 911 F.2d 705, 707 n.3, 15 USPQ2d 1655, 1657 n.3 (Fed.
Cir. 1990).
Appellant’s claim 20, which is the only independent
claim on appeal, requires that the cathode comprise “an
amorphous metal-oxide layer having a submicron
microstructure.” The examiner takes the position that the
cathode of Higashimoto inherently has “a packed submicron
microstructure, even if only on the atomic level” (answer,
page 3). Moreover, the examiner urges that Higashimoto (page
5, lines 5-18 and page 6, lines 24-26) discloses an
amorphous metal oxide cathode layer.
The examiner’s argument is not persuasive because
the examiner has not established that Higashimoto necessarily
produces a cathode with a submicron microstructure
corresponding
to appellant’s cathode microstructure. In this regard, we
note that appellant defines the claimed submicron
microstructure as requiring a submicron grain size structure
as depicted in figure 4(b) of the drawings and as described
4
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