Ex parte PLUMTON et al. - Page 4

              Appeal No. 1998-2962                                                                                        
              Application No. 08/485,079                                                                                  

                     Moreover, appellants do not positively argue the double patenting rejection,                         
              observing only that arguments cannot yet be made because the claims of Application                          
              Serial No. 08/474,612 “may change” [brief-page 4].  Appellants parenthetically muse that                    
              the claims of 08/474,612 are “directed to equivalence of the crystal orientations of the gate               
              finger sidewalls and the drain surface and this has no suggestion of the (100) within 0.5° of               
              claims 10-13" [brief-page 4].  However, this does not address the issue of disclosure of                    

              the instant claimed subject matter in 08/474,612 in the Schneller context.                                  

                     Accordingly, the rejection of claims 10-13 under double patenting is sustained.                      
                     With regard to the rejection of claims 10-12 under 35 U.S.C. § 103 in view of Lüth                   
              and Rode, we will also sustain this rejection.                                                              
                     The examiner indicates that the difference between the instant claimed invention                     
              and that disclosed by Lüth is the former’s recitation of a substrate that is tilted within 0.5              
              degrees from the (100) crystal plane.  However, the examiner relies on Rode, which                          
              appears to teach the claimed range of orientation [see claim 4 of Rode] and the examiner                    
              concludes that it would have been obvious to tilt Lüth’s substrate within 0.5 degrees from                  
              the (100) crystal plane as suggested by Rode.                                                               


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