Appeal 2006-2769
Application 09/846,980
It can be inferred from this passage that the type of annealing (removing
hydrogen from a p-type layer) employed, e.g., at a temperature of 600oC. or
below (the temperature reached during “further cooldown”) is dependent on
desired time periods for activation of the p-type layer. In re Preda, 401 F.2d
825, 826, 159 USPQ 342, 344 (CCPA 1968). This passage would have
provided one of ordinary skill in the art with a reasonable expectation of
successfully annealing Bour’s p-type layer using any and all of the above
temperatures in the presence of nitrogen at given activation time periods.
Preda, 401 F.2d at 826, 159 USPQ at 344. Therefore, using a combination
of further cooling down and heating Bour’s p-type layer at workable
activation temperatures (below 600o C. and/or at 600o C.) to obtain desired
activation time is well within the ambit of one of ordinary skill in the art.
Boesch, 617 F.2d at 276, 205 USPQ at 219 (“[D]iscovery of an optimum
value of a result effective variable in a known process is ordinarily within
the skill of the art.”). This is especially true in this situation since the
claimed process involving heating the p-type layer to 600o C. from a cool-
down temperature just below 600o C. (e.g., 599.9999o C.) is essentially
identical to Bour’s activation step involving cooling the p-type layer to and
then maintaining it at about 600o C. Compare Titanium Metals Corp. of Am.
v. Banner, 778 F.2d at 783, 227 USPQ at 779(A prima facie case of
obviousness exists when the claimed range and the prior art range do not
overlap but are close enough such that one skilled in the art would have
expected them to produce products having the same properties). As is
apparent from the Appellants’ admission at page 3 of the Specification, one
of ordinary skill in the art recognizes that the annealing temperatures at or
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