Appeal 2006-2988
Application 10/107,322
chloride gas as part of the apparatus enables the claimed
apparatus to automatically function such that, when the
parameters relating to the dry-etching conditions are input
directly or through a memory device of a computer to the
sequencer of the apparatus and then starting the dry-etching
process, the dry-etching is automatically carried out under the
dry-etching conditions.
(Principal Br. 7, second paragraph).
We do not subscribe to Appellants’ position. Appellants’ argument is
tantamount to saying that a claimed mixing vessel containing water is
patentably distinct from another mixing vessel of the same structure
containing alcohol. Manifestly, it is well settled that the structure of an
apparatus for purposes of patentability is not defined by material contained
therein as either a reactant or a material processed therein. In the present
case, appellants make no argument that the hardware or software of the
claimed apparatus is somehow different than the hardware or software
utilized in the apparatus of Moriya. Appellants cannot gain patentability
here by simply reciting that the source of the etching gas, be it a tank or
otherwise, contains a different etching gas than the one utilized by Moriya.
While Appellants maintain that claim 19 “is not directed to a process,”
Appellants’ argument for patentability that the claimed apparatus cannot
automatically carry out the recited dry-etching without the source of the
recited gases is steeped in process language. Appellants’ argument is
analogous to an argument that a claimed automobile comprising a fuel tank
containing only gasoline, i.e., a source of fuel consisting essentially of
gasoline, is patentably distinct from a prior art automobile that is structurally
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