Appeal No. 2006-2210
Application 09/944,230
Appellants’ artful approach to claim the surface as “substantially free
of hills and valleys” is at least the same as or broader than the originally
disclosed approach of showing and describing the same surface as
substantially planar. We recognize that the various references do not
actually teach with words in the specification of the respective references a
negative limitation using the exact words in the manner in which appellants’
claim them. On the other hand, the artisan is not going to be deceived that
the disclosed and shown features in each of the respective patents of
substantially planar surfaces is not coextensive with substantially free of
hills and valleys. Even if we were to agree with appellants’ views expressed
at the bottom of page 7 of the principal brief on appeal that the artisan would
not have expected the surface of prior photoresist layers to have a variety of
miniscule nonplanar features, the claims also actually recite a modifier, that
is, the word “substantially,” thus accommodating some miniscule nonplanar
features including hills and valleys in the manner claimed. To the extent it
appears to be argued, the claims therefore do not recite positively that the
surface is planar or that it is positively or completely free of hills and
valleys. The arguments actually made before us are not consistent with the
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