Appeal No. 2003-0270
Application 09/087,234
pore size is that of the dielectric structure (col. 3, lines 59-
62). However, the teaching that the densified porous sublayer,
but not the undensified porous sublayer, shrinks during drying
(col. 7, lines 1-20), indicates that the pores of the densified
porous sublayer are smaller than those of the undensified porous
sublayer.
The appellants argue that “there is no suggestion in Gnade
for any processing step to collapse any pores; rather the low
porosity sublayer [29] is directly formed with low porosity”
(brief, page 3). This argument is not persuasive because, as
discussed above regarding the rejection over Kondo, the
appellants are claiming an article and not a method for making
it. As discussed above, it reasonably appears that Gnade’s
article falls within the scope of claim 4. The appellants,
therefore, have the burden of showing a patentable distinction
between their claimed article and that of Gnade, see Fitzgerald,
619 F.2d at 70, 205 USPQ at 596; Best, 562 F.2d at 1255, 195 USPQ
at 433-34, and the appellants have not done so.
For the above reasons we affirm the rejection over Gnade.
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