Appeal No. 1998-2910
Application No. 08/500,282
however microscopic. Appellant does not disclose or claim any
specific degree, or range, of texture of the substrate
surface. Accordingly, we find appellant's argument regarding
the substrate surface being "textured" to be unpersuasive of
nonobviousness.
With regard to claim 10, appellant argues the
nonobviousness of the textured surface comprising "an array of
pyramids etched on the surface." The examiner points to two
references (U.S. Patent Nos. 5,581,146 and 5,448,132) as
evidence of pyramid-shaped emitters. To whatever extent these
two references may be applicable to the instant claimed
invention, we will not consider them because they are not part
of the statement of rejection and may not properly be relied
upon. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407
n.3 (CCPA 1970). However, column 7, lines 28-35, of Kumar 200
is clearly suggestive of pyramid-shaped emitters. Since it is
recited therein that "[c]ertain micro-tip geometries may
result in a larger enhancement factor and, in fact, the
present invention could be used in a micro-tip or 'peaked'
structure," the skilled artisan would have understood such a
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