Appeal No. 1997-3443 Application No. 08/595,901 Appellant argues that Baker does not teach or suggest electrically conductive material damaging the lattice structure by extending into said lattice structure. This is a process limitation which is entitled to no patentable weight in appellant’s apparatus claim. Appellant has effectively admitted that process limitations in product claims are entitled to no weight at page 2 of his reply brief filed July 8, 1997 (Paper No. 14) wherein he states, [h]owever, after correctly stating that “a ’product by process’ claim is directed to the product per se”, the Examiner then erroneously implies that the end product is the same as in Baker. Furthermore, when the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either section 102 or section 103 of the statute is eminently fair and acceptable. In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972). To the extent that appellant is arguing that Baker does not disclose damaged regions, his position is unpersuasive. The n-type regions 13b of Baker are damaged regions of the lattice structure and they are adjacent to the electrically conductive material 23. The damage occurs during manufacture when the n-type regions are formed from p-type regions by ion bombardment. Appellant’s attack on the examiner’s reference to U.S. Patent 4,411,732 to Wotherspoon in his answer is of no import because the reference is unnecessary to the rejection1. The examiner merely notes that Wotherspoon details the conversion of p-type cadmium mercury 1 Wotherspoon is specifically incorporated by reference in Baker 4Page: Previous 1 2 3 4 5 6 NextLast modified: November 3, 2007