Appeal No. 95-2454
Application No. 07/396,733
In re Farrenkopf, 713 F.2d 714, 718, 219 USPQ 1, 4 (Fed. Cir. 1983) citing Orthopedic Equipment Co.
v. United States, 702 F.2d 1005, 1013, 217 USPQ 193, 200 (Fed. Cir. 1983). Thus, the question is one
of technical rather than commercial feasibility. Applicant has not provided any evidence which shows that
those having ordinary skill in the art would have recognized a technological incompatibility. Nor has
applicant directed us to any evidence which supports the argument that “it is extremely unlikely that it
would be commercially feasible to grow a thermal recessed oxide to a thickness in the vicinity of 10
microns.” Argument of counsel on appeal cannot substitute for evidence. Weinar v. Rollform Inc., 744
F.2d 797, 806, 223 USPQ 369, 374 (Fed. Cir. 1984); Knorr v. Pearson, 671 F.2d 1368, 1373, 213
USPQ 196, 200 (CCPA 1982) ; In re Greenfield, 571 F.2d 1185, 1189, 197 USPQ 227, 230 (CCPA
1978); In re Langer, 503 F.2d 1380, 1395, 183 USPQ 288, 299 (CCPA 1974).
In any event, we find that the person having ordinary skill in the art would not interpret Frouin’s
teachings as being limited to epitaxial layers of at least 10 microns. While Frouin’s specific examples
describe an epitaxial layer of 10 microns, it is axiomatic that a reference must be considered in its entirety,
and it is well established that the disclosure of a reference is not limited to specific working examples
contained therein. In re Fracalossi, 681 F.2d 792, 794 n.1, 215 USPQ 569, 570 n.1 (CCPA 1982); In
re Lamberti, 545 F.2d 747, 750, 192 USPQ 278, 280 (CCPA 1976). Nothing in Frouin indicates that
thickness of the epitaxial or other layers is of significance in obtaining an operative integrated circuit device.
The other references of record clearly teach that those working in the integrated circuit art were aware of
the manufacturing techniques using thin epitaxial layers. For example, Murphy teaches the use of a one
micron thick epitaxial layer is conventional in the art. Murphy, col. 5, lines 2-7. In addition, we find that
the person having ordinary skill in the art would have recognized the reasonable limits of the Murphy’s
depression filling procedure. Murphy teaches that 440 angstroms (.44 microns) of silicon is consumed for
every 1000 angstroms (1 micron) of silicon oxide formed. See, Murphy, col. 2, lines 62-65. This gives
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