Appeal No. 2003-
Application No. 09/
aperture in the insulation film 107 and is in electrical
communication with the horizontal wiring conductor 101.
Given this disclosure in the prior art, we agree with the
examiner that, prima facie, Kitamura discloses each and every
limitation of the invention recited in appealed claim 23. In re
Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir.
1997).
While Kitamura’s combination of the insulation film 107,
horizontal wiring conductor 101, and vertical via conductor 102
is produced by a method that may be different from the
appellants’ disclosed method, the appellants fail to identify
any evidence establishing that the claimed product and the prior
art combination differ structurally. In this regard, when a
product recited in a product-by-process claim reasonably appears
to be the same as or obvious from a product of the prior art,
the burden is on the applicants to show that the prior art
product is in fact different from the claimed product, even
though the products are made by different processes. In re
Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
The appellants argue (appeal brief, pages 5-6):
It is clear from both Figs. 1A-1E and the
description by Kitamura that the horizontal wiring
conductors 101 are first provided on a top surface of
the substrate 100. There is no groove formed in the
substrate, let alone a groove formed in the substrate
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