Appeal No. 95-2599
Application 07/983,931
claims 9 and 10. Upon a closer review of Sato, we fail to find
that Sato teaches or suggests that the lower portion includes a
section having tapered side walls. Sato only teaches that a
silicon layer 5 is formed on the side walls of the gate electrode
3 shown in Figure 1c. Therefore, we will not sustain the
rejection of claims 9 and 10 as being anticipated under 35 U.S.C.
§ 102 or unpatentable under 35 U.S.C. § 103.
Finally, claims 6, 8 through 10, 22, 24 and 25 stand
rejected under the judicially created doctrine of obviousness-
type double patenting as being unpatentable over the claims 23,
26, 33 and 34 present in U.S. Patent No. 5,543,646. On page 2 of
the supplemental reply brief, Appellants argue that the rejection
is improper because the Examiner did not specify which claims of
the co-pending application are employed in the rejection. The
Examiner responded to the supplemental reply brief with a letter,
mailed July 3, 1995, which clarified that Appellants' claims 6, 8
through 10, 22, 24 and 25 stand provisionally rejected under the
judicially created doctrine of obviousness-type double patenting
as being unpatentable over the claims 23, 26, 33 and 34 present
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