Appeal No. 95-3455
Application 07/945,902
as inadequate to "make a floating gate." In our opinion,
there is no such evidence of record.
Indeed, the examiner's only basis for so-concluding is
his conclusion that "there is no support in the specification
for forming a floating gate electrode without an insulating
layer" (page 9 of the Answer). That conclusion is, on its
face, factually erroneous. On page 1 of the specification,
forming a floating gate electrode by laminating on a silicon
substrate either polysilicon or polysilicon followed by a
tungsten silicide layer with a tunnel oxide layer sandwiched
between is described. No step of coating the laminate with an
insulating layer is described therein. Except for the use of
dichlorosilane instead of silane, this disclosure essentially
tracks verbatim original claim 1 of appellants' application.
Original claims constitute part of the original disclosure of
a patent application. See In re Gardner, 475 F.2d 1389, 1391,
177 USPQ 396, 397 (CCPA 1973); In re Anderson, 471 F.2d 1237,
1238-39, 176 USPQ 331, 332 (CCPA 1973); In re Myers, 410 F.2d
420, 427, 161 USPQ 668, 673 (CCPA 1969).
For all the above reasons, we find that the examiner has
failed to factually establish any basis for concluding that
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