Appeal No. 2003-1195
Application No. 08/526,339
the rejection. Moreover, reference to claim 1, for example,
wherein a “layer of polysilicon having sections . . .” (emphasis
added) is recited would indicate that, contrary to appellant’s
assertion, that term still does appear in the claims.
Accordingly, appellant’s argument in this regard is not
persuasive of nonobviousness.
Appellant also argues that “the relationship of the gate
with respect to being ‘located intermediate said source section
and said drain section’ has now been clarified as being on the
same side of the oxide layer, which is not taught by Spangler
(see page 6, starting last paragraph of the Decision)” (brief,
page 7). It is not clear which claim or claims are being
referenced by appellant. Appellant seems to be making arguments
based on our earlier decision but the language being cited by
appellant, regarding the relative locations of the source, gate
and drain, vis-à-vis the oxide layer, does not appear in the
instant claims. Such arguments fail from the outset because they
are not based on limitations appearing in the instant claims.
In re Self, 671 F.2d 1344, 1348, 213 USPQ 1, 5 (CCPA 1982).
Appellant argues that the location of the “dielectric
layer,” as discussed at pages 7 and 8 of the Decision, has been
clarified as being “in contact with the substrate and the layer
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