Appeal No. 2004-2192
Application No. 09/414,520
The examiner relies upon the following references as
evidence of unpatentability:
Ovshinsky et al. (Ovshinsky) 5,324,553 Jun. 28, 1994
Satou et al. (Satou) 5,961,850 Oct. 5, 1999
Akahori et al. (Akahori) 6,215,087 Apr. 10, 2001
Claims 1, 2, and 5 stand rejected under 35 U.S.C. §103 as
being unpatentable over Satou in view of Ovshinsky.
Claims 4, 6, 7, 9, and 10 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Satou and Ovshinsky and further
in view of Akahori.
OPINION
I. The rejection of claims 1, 2, and 5 under 35 U.S.C. § 103 as
being obvious over Satou in view of Ovshinsky
On page 3 of the answer, the examiner refers to Paper No. 18
regarding his position for this rejection. In Paper No. 18, the
examiner’s position is set forth on pages 2-4.
Beginning on page 6 of the brief, appellants rebut the
examiner’s position. Appellants submit that the rejection is in
error, inter alia, because the subject matter regarding the gas
species, i.e., carbon and fluorine, is not set forth in the
combination of references.
We agree with appellants that neither Satou nor Ovshinsky
teach a gas species that contains carbon and fluorine. However,
claim 1 is an apparatus claim (as well as claims 2, 4, and 5).
As such, we note that a claim recitation with respect to the
material intended to be worked upon by the claimed apparatus,
does not impose structural limitations upon the claimed
apparatus, which differentiates it from a prior art apparatus
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