Appeal No. 2005-1353
Application No. 09/851,839
and Kubiak for teachings of limitations occurring in several
dependent claims (Answer, pages 5-10).
The dispositive issue in this appeal is the construction
given the claim language by the examiner. The examiner construes
the limitation “wherein the first layer substantially
accommodates strain accumulated between the first crystal and the
second crystal during epitaxial growth” as meaning that the first
layer “merely has to accommodate any amount, which can be very
small, of the strain” (Answer, page 11). We disagree.1
As correctly argued by appellant, the examiner fails to
properly construe the phrase “substantially accommodates” in the
interpretation of the language in claim 1 on appeal (Reply Brief,
page 2). Appellant states, and the examiner does not dispute,
that the process of stacking the Ga layer over the As layer in
Pessa continues until the desired buffer layer thickness is
achieved, requiring many individual layers of As and Ga one atom
layers to achieve the desired thickness (Brief, page 16; Reply
Brief, page 4 (“anywhere from 32 to 1200 layers”); Pessa, col. 3,
ll. 60-62). As appellant correctly argues, a structure made up
1We also note claim 27 on appeal, which has not been
separately argued by appellants or construed by the examiner.
The method recited in claim 27 is similar to claim 1 on appeal
but omits the word “substantially.”
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