Appeal No. 2004-0605
Application 09/411,129
basic and novel characteristics of the sacrificial layer. See In
re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976).
The examiner and the appellants should state on the record what
they consider to be the basic and novel characteristics of the
appellants’ sacrificial layer, and address whether the silicon in
a polycrystalline germanium-silicon alloy would materially affect
those basic and novel characteristics.
If the prior art would have fairly suggested, to one of
ordinary skill in the art, polycrystalline germanium as the
germanium in Fitch’s germanium-silicon alloy, and the silicon in
the alloy would not materially affect the basic and novel
characteristics of the appellants’ sacrificial layer, then the
appellants should explain why they consider the claimed invention
to be patentable.
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