Appeal No. 2000-0281
Application 08/907,494
Fount [sic - In re Fout] [citations omitted]; In re Siebentritt [citations omitted],
therefore, to substitute the MBE process in Nakamura et al by laser ablation,
CVD or MOCVD for depositing the upper film would have been obvious to one of
ordinary skill in the art. (Examiner’s Answer, page 7, lines 13 - 19).
While we agree generally that the substitution of equivalents is obvious, the
determination of obviousness must be made on the evidence of record as compared to
the claimed subject matter as a whole.
Section 103(a) of the patent statute provides as follows:
A patent may not be obtained though the invention is not identically disclosed or
described as set forth in section 102 of this title, if the differences between the
subject matter sought to be patented and the prior art are such that the subject
matter as a whole would have been obvious at the time the invention was made
to a person having ordinary skill in the art to which said subject matter pertains.
Patentability shall not be negatived by the manner in which the invention was
made. 35 U.S.C. Section 103(a) (1994). (emphasis added)
The claimed subject matter as a whole claims a two step deposition process in
which the oxide superconductor is deposited on a substrate by molecular beam, and the
upper thin film is deposited by another, faster, process other than molecular beam
deposition. This is a two step deposition with different deposition types in the same
process.
Our review of the cited prior art indicates that each, while relating to a multi-step
deposition, utilizes the same deposition types. Nakamura uses molecular beams to
create an oxide superconductor layer (col. 7, lines 60-68), then a layer of dielectric film
deposited using the same set-up (col. 8, lines 16-32). Kingston teaches growing layers
in situ using an excimer laser (Abstract, line 2).
However, none of the cited references teach a mixed deposition process. The
Appellants have strongly urged that switching from molecular beam to some other form
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