Appeal No. 2003-0270
Application 09/087,234
lines 6-7), indicate that the dense layer contains small pores
within a distance of 2D of the multilayer substrate surface,
where D is the average pore diameter of the multilayer substrate.
The appellants argue that “[t]here is no suggestion in Kondo
for any processing step to collapse any pores; rather the low
porosity sublayer [1b] is directly formed with low porosity”
(brief, page 3). The appellants, however, are claiming an
article, not a method for making it. Hence, the relevant
question is whether Kondo’s article is the same or substantially
the same as the appellants’ article formed using the implied
product-by-process step of collapsing pores. See In re Thorpe,
777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985); In re
Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977). As
discussed above, the appellants’ specification indicates that the
term “collapsed pores” encompasses pores which are smaller than
those farther from the surface such that the porosity of the
collapsed pore-containing material is less than about half that
of the material at some chosen distance away from the surface.
Kondo’s disclosures that the relative densities of the dense and
porous layers are, respectively, 1% and 63.5%2, and that the only
2 (X x 250 + 0.01 x 15)/265 = 0.6; X = 0.635.
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