Appeal No. 2003-1365
Application No. 09/376,659
Kokubu in view of Gardner ‘518 and of claims 21 and 22 over
Komori, Gardner ‘298 and Kokubu in view of Gardner ‘531.
Turning now to the rejection of the claims under the
judicially created doctrine of obviousness-type double patenting
over Pham in view of Kokubu, we note that Appellants rely on the
same arguments related to the lack of basis for combination that
was raised with respect to the combination of Kokubu and Gardner
‘298 (brief, page 20 and reply brief, page 16). Additionally,
Appellants rely on the common filing date of the instant
application and the application that resulted in the patent to
Pham and indicate that the rejection should not stand since there
would be no extension of time (id.). In response, the Examiner
reminds Appellants of common ownership as the other relevant
aspect of the doctrine of obviousness-type double patenting and
the possibility that the patent terms may not coincide (answer,
page 10).
We agree with the Examiner and add that the claims of Pham
are similar to the present claims under appeal to the extend that
the patented independent claims 1 and 8 recite the same process
steps and further require that the second protective layer be
formed of nitride or SiON whereas the present claims require HTO
as the second protective layer. As discussed above with respect
15
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: November 3, 2007