Appeal No. 1998-2671
Application No. 08/480,543
The rejection of claims 3, 10-12, and 18 under the
judicially created doctrine of obviousness-type double
patenting as being unpatentable over claims 16-18 of
U.S. Patent No. 5,108,951.
Appellants attack the Examiner’s position by asserting
(Brief, page 9) that the claims of the ‘951 patent do not make
obvious the present appealed claims and, under the two-way test
required under this double patenting doctrine, the present
appealed claims do not make obvious the ‘951 patent claims
16-18.2 We do not agree and, therefore, sustain the Examiner’s
rejection.
In the first instance, we agree with the Examiner that
sufficient evidence exists to support the conclusion that the
metal deposition process defined by claims 16-18 of the ‘951
patent in which aluminum deposited at a temperature between 350°
and 500° C will necessarily form an alloy with the refractory
metal barrier layer to fill the opening in the insulator layer.
With regard to Appellants contention that a two-way
obviousness test is required, we are not convinced that
Appellants have provided persuasive evidence that the conflicting
claims could not have been filed in a single application nor of
2 As pointed out by Appellants, the present application was
filed before the effective filing date of the ‘951 patent.
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