Appeal No. 1997-3695
Application No. 08/097,526
the mask is present and allows the epitaxial layer to form
only on the exposed portions of the substrate surface.
Therefore, the selective deposition step, as recited in
Appellants’ independent claim 1, causes the gaps between the
adjacent quantized regions to be defined by the width of the
epitaxy mask. Appellants’ independent claim 2 does not
require sidewall masking and merely recites forming an epitaxy
mask and selective deposition of a laterally segmented quantum
well. However, we note that the recitation of “epitaxially
depositing a tunneling barrier on the segmented quantum
well[s]” in claim 2 requires small enough separation between
quantum well segments that would allow the tunneling of
electrons through the tunneling barrier.
The Federal Circuit states that "[t]he mere fact that the
prior art may be modified in the manner suggested by the
Examiner does not make the modification obvious unless the
prior art suggested the desirability of the modification." In
re Fritch, 972 F.2d 1260, 1266 n.14, 23 USPQ2d 1780, 1783-84
n.14 (Fed. Cir. 1992), citing In re Gordon, 733 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984). It is further
established that “[s]uch a suggestion may come from the nature
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