Appeal No. 1999-2512
Application No. 08/888,499
under the judicially created doctrine of obviousness-type double
patenting, the reference need only be commonly assigned and
copending, not prior art under 35 U.S.C. § 102/§ 103. See In re
Braithwaite, 379 F.2d 594, 600 n.4, 154 USPQ 29, 34 n.4 (CCPA
1967).
For the foregoing reasons and those set forth in the Answer,
we determine that the examiner has established a prima facie case
of obviousness-type double patenting in view of Musaka, which has
not been adequately rebutted by appellant. Accordingly, the
examiner's rejection for obviousness-type double patenting is
affirmed.
D. The Rejection over Lane
As correctly surmised by the examiner, the "main issue" or
dispositive issue in the rejection over Lane as the primary
reference is whether Lane discloses or suggests the formation of a
silicon dioxide film containing a halogen (fluorine). See the
Answer, pages 13 and 20. As correctly argued by appellant, Lane
teaches that no fluorine was found in the silicon dioxide deposited
in the process of Lane (Brief, page 8). See Lane, col. 5, 11.
29-43. The examiner argues that the sensitivity of the RBS test in
Lane is not known, and thus there could be some fluorine in the
11
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: November 3, 2007