Appeal No. 2003-0799 Page 3
Application No. 09/567,818
OPINION
Claim 1
Claim 1 is directed to a device. In terms of structure, the device must have silicon islands
“having substantially vertical sidewalls” as well as a lower polyimide layer and an upper
polyimide layer.
Appellants do not dispute that Barth describes a device having silicon islands and the
upper and lower polyimide layers required by the claim. Instead, Appellants argue that the use
of RIE to form substantially vertical sidewalls on the silicon islands is not taught by Barth, either
alone or in view of the APA and that the Examiner’s rejection is based on hindsight (Brief, pp. 4-
5).
First, we note that the words “formed by RIE” do not serve to restrict the device to one
formed using that specific process. “The patentability of a product does not depend on its
method of production.” In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
The device of the claim must have “substantially vertical sidewalls” however they are made.
Second, the APA cited by the Examiner provides evidence that three etching processes
were known for forming silicon islands: (1) an isotropic HNA etching process which results in
the structure shown in Figure 1A, (2) a caustic anisotropic etching process which results in the
structure of Figure 1B, and (3) a combination of anisotropic and reactive ion etching (RIE)
which results in the structure of Figure 1C (specification, pp. 5-6).
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