Appeal No. 1999-2580 Page 6
Application No. 08/753,598
the dots vertically aligned, we fail to find any suggestion of the intermediate layers
having a thickness smaller than a height of the quantum dots in a freely grown state, as
claimed. The examiner makes an interesting argument regarding the “inherency” of
Solomon’s intermediate layers having a thickness smaller than a height of the quantum
dots in a freely grown state since the intermediate layers compress the quantum dots to
fit between the intermediate layers. However, each of the independent claims requires
that the intermediate layers have thicknesses smaller than a height of the quantum dots
“in a freely grown state.”
Solomon does not appear to teach that the islands, or quantum dots, are
compressed when the GaAs spacer layer is deposited. Thus, the islands, or quantum
dots, of Solomon may very well be in their freely grown state at the time of depositing
the GaAs spacer layer, in which case the thickness of the intermediate layer would not
be smaller than the height of the quantum dots. In such case, the thickness of the
intermediate layer would be larger than, or possibly equal to, the height of the quantum
dots. The examiner cites highly relevant art and makes some salient points and, if
there was any suggestion within Solomon or Xie that the quantum dots were
compressed from their freely grown state when the intermediate layer is deposited, we
would agree with the examiner that the claimed subject matter would be obvious within
the meaning of 35 U.S.C. § 103. However, because Solomon is not clear (and Xie fails
to provide for the deficiency) in suggesting that the islands, or quantum dots, have been
compressed from their freely grown state when the intermediate layer is deposited, for
us to agree with the examiner would require speculation on our part. A prior art
rejection must not be based on speculation.
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