Appeal No. 2000-0281
Application 08/907,494
functionally equivalent to the pulsed laser ablation process of Kingston (Examiner’s
Answer, page 4, lines 8-10).
The Examiner thus concludes that it would have been obvious to one of ordinary
skill in the art to have substituted the MBE deposition method of Nakamura with its
functional equivalent, a laser ablation method of Kingston, with an expectation of
success. (Examiner’s Answer, page 4, lines 7-10). Such substitution, it is said, results
in maintaining the claimed faster deposition of the upper layer (Examiner’s Answer,
page 4, lines 10-15).
In response, the Appellants state that “the art fails in the first instance to suggest
combining different deposition processes when making more than one layer.” (Appeal
Brief, page 5, lines 19-21). Further, appellants contend:
“[b]oth Nakamura and Kingston use the same type of process to deposit an oxide
superconductor and overlying dielectric layer. The combination of the two
references is devoid of any suggestion or teaching of combining a technique from
one with a technique from the other, thereby leading to the use of two different
deposition processes as presently claimed. Indeed, such a combination would
have been contrary to generally accepted practices in this field, whereby the
same type of process, in the same apparatus, is used to deposit the two layers.
Using this approach, no additional apparatus is necessary and it is possible to
deposit both films by changing only the raw material and deposition conditions.
Moreover, the risk of contamination of the surface of the first layer is reduced if it
remains in the same apparatus. Processes which use a single technique and
apparatus are thus deemed to be simpler and better, and absent some reason
for proceeding contrary to this practice, a person of ordinary skill in the art would
not have been motivated to do what applicants have done and use different
techniques for depositing each of the layers.” (Appeal Brief, page 5, line 27-
page 6, line 11).
The Examiner has responded to this argument by repeating his previous
argument, by noting:
“the Examiner has shown that MBE, laser ablation, CVD, and MOCVD are
functional equivalent deposition methods for depositing the STO films. Because
substitution of equivalents requires no express motivation according to In re
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