Appeal No. 2004-0605
Application 09/411,129
REMAND
The examiner and the appellants have not addressed on the
record whether Fitch’s disclosure of a germanium-silicon alloy
sacrificial layer would have fairly suggested, to one of ordinary
skill in the art, a polycrystalline germanium-silicon alloy
sacrificial layer, and whether such a polycrystalline germanium-
silicon alloy would fall within the appellants’ claim term
“consisting essentially of polycrystalline germanium”.
The germanium in Fitch’s germanium-silicon alloy can be in
only three forms: polycrystalline, single crystalline or
amorphous. As disclosed by Iranmanesh (col. 3, lines 65-66) and
other references,1 polycrystalline germanium-silicon alloy was
known in the art at the time of the appellants’ invention.
Hence, the examiner and the appellants should address whether 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.
The appellants’ term “consisting essentially of” includes
not only the polycrystalline germanium in the sacrificial layer,
but also any other materials which do not materially affect the
1 See, e.g., Saraswat et al., U.S. 5,250,818, issued
October 5, 1993.
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