Appeal No. 2006-1797
Application No. 09/866,319
Cir. 1997). Further, it has been held that: “[W]here the claimed
and prior art products are identical or substantially identical
in structure or composition, or are produced by identical or
substantially identical processes, a prima facie case of either
anticipation or obviousness has been established.” In re Best,
562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). “When the PTO
shows a sound basis for believing that the products of the
applicant and the prior art are the same, the applicant has the
burden of showing that they are not.” In re Spada, 911 F.2d 705,
709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima
facie case can be rebutted by evidence showing that the prior art
products do not necessarily possess the characteristics of the
claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433.
See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ
773 (Fed. Cir. 1985).
Now, the question before us is what Marty would have taught
to one of ordinary skill in the art? To answer this question, we
find the following facts:
At column 3, lines 25-39, Marty states the following:
[A] stack 8 of three layers 80, 81 and 82, within which
the future base of the transistor will be produced, is
then epitaxially grown. More precisely, a first layer
of undoped silicon 80 is epitaxially grown over a
10
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