Appeal No. 1997-3512 Page 4
Application No. 08/482,034
35 U.S.C. § 102(b) as anticipated by, or in the alternative,
under 35 U.S.C. § 103 as obvious over Gaw. 1
The focus of the dispute between the appellants and the
examiner resides in the recitation that the step of providing
a material structure includes first and second base layers
having approximately the same doping concentration. The
examiner states (final rejection, page 2) that in Gaw, both
base layers have approximately the same doping concentration.
We find that Gaw discloses the base layer (13), which is
nearest to emitter layer (14), to have a different doping
concentration than the doping concentration of the base layer
(12) which is nearest to the collector (11). The issue,
therefore, centers around whether the different doping
concentrations of the two base layers are “approximately” the
1We note that in the examiner’s Response to argument
(answer, pages 3 and 4) the examiner refers to references to
Tokui et al. and Nakagawa to support the examiner’s position.
No mention of these references is found in the rejections set
forth by the examiner, nor are they referred to by appellants
in the brief. Where a reference is relied on to support a
rejection, whether or not in a minor capacity, that reference
should be positively included in the statement of the
rejection. See In re Hoch, 428 F.2d 1341, 1346, n.3, 166 USPQ
406, 407 n.3 (CCPA 1970). Accordingly, we have not considered
these references in making our determinations under 35 U.S.C.
102(b) or 35 U.S.C.
§ 103.
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