Appeal No. 2005-2150
Application No. 10/407,084
Instant claim 7 further limits the subject matter of claim 1 in the requirement that
the tool utilization factor is provided in wafers per hour. Appellants submit that Martin is
directed to utilization of “X-factor” (i.e., normalized cycle time) rather than “throughput”
(i.e., wafers per hour). Appellants allege that Martin’s principle of operation would
change if combined with the teachings of Kraft and that Martin “teaches away” from the
instant invention. Appellants recognize that Martin acknowledges that X-factor and
throughput are related measurements, but submit that Martin clearly favors X-factor as
a more sensitive measure of manufacturing facility productivity. (Brief at 13-14.)
“A reference may be said to teach away when a person of ordinary skill, upon
[examining] the reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was taken by the
applicant.” Para-Ordnance Mfg. v. SGS Importers Int’l, 73 F.3d 1085, 1090, 37
USPQ2d 1237, 1241 (Fed. Cir. 1995) (quoting In re Gurley, 27 F.3d 551, 553, 31
USPQ2d 1130, 1131 (Fed. Cir. 1994)). Martin does not warn the artisan against using
throughput as an indicator of productivity. The reference, in fact, teaches that
throughput and the X-factor are fundamentally related (e.g., col. 2, ll. 42-51).
Martin does teach that the X-factor is a more sensitive indicator of capacity
problems than throughput, in general. However, the reference provides examples in
which the throughput constraint is “not necessarily” the performance constraint for the
line (e.g., col. 5, ll. 25-35), which demonstrates that in some scenarios throughput may
be the better indicator.
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