Appeal No. 1998-0078
Application No. 08/478,814
We note Appellant asserts that the switching means includes valve 56. (Brief, page
6, lines 1-2, page 10, lines 9-11 and Reply Brief, paragraph bridging pages 2 and 3). Upon
review of figure 3 and the above cited portions of the specification, we do not agree with
Appellant because the function of the gas the switching means is to allow rapid switching
between specific ashing and etching gases. Valve 56 appears to function as a gas shut off.
The rejections under 35 U.S.C. § 102
To establish an anticipation under Section 102, a reference must disclose, either
expressly or under the principles of inherency, each and every element of the claimed
invention. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990);
RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440, 1444, 221 USPQ 385,
388 (Fed. Cir. 1984).
The Examiner has rejected claim 26 under 35 U.S.C. § 102(e) as anticipated by the
disclosure of Amemiya. The Examiner asserts Amemiya’s mass flow controllers are a
switching means. (Examiner’s Answer, page 4, line 2). Also, “mass flow
controllers are controllable valves, as is well known by those in the art. Hence the mass
flow controllers of Amemiya et al are at least equivalent if not identical to those of the
instant disclosure.” (Examiner’s Answer, page 7, first paragraph) (emphasis original).
Appellant asserts the Examiner has not established that Amemiya discloses the
claimed switching means which includes valves. (Brief, pages 8-10 and Reply Brief, pages
-8-
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