Appeal No. 2001-0297
Application No. 09/196,375
In reaching our decision in this appeal, we have given careful consideration to
appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by appellant and the examiner. As a consequence of
our review, we make the determinations which follow.
35 U.S.C. § 112, FIRST PARAGRAPH
Appellant argues that the Summary of the Invention at page 4 and the
description of Figure 5 at pages 5 and 12 of the specification provide support for claim
5. We disagree with appellant. We find that the cited portions of the specification and
Figure 5 do not clearly show whether the first and second transistors were
contemplated to be MOS or CMOS transistors as recited in dependent claim 5. Rather,
the specification and Figure 5 tend to imply that CMOS or MOS transistors “may also”
be included on the integrated circuit in addition to the first and second bipolar
transistors, while the last paragraph of the specification states that the described
embodiment is not limiting, we find no other teaching or suggestion in the original
twelve pages of the specification that the claimed structure can be extended to MOS or
CMOS transistors. With this said, we cannot sustain the rejection of claims 5 and 10
under a lack of written description rejection. From our review of the application at the
time of filing, we have found that subject matter of dependent claim 5 was originally
filed with the application and its parent claim 3 had similar limitations to present claim 3.
Therefore, appellant had possession of the claimed subject matter at the time of filing of
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