Appeal No. 1998-2329
Application No. 08/740,402
F.2d 1555, 1563, 19 USPQ2d 1111, 1117 (Fed. Cir. 1991). The
examiner agrees with appellants that the specific stress values
recited in claim 1 on appeal are described on page 10, lines 25-
28, of the specification (Answer, page 4; Brief, page 8).
Accordingly, by inserting these stress values into claim 1 on
appeal, appellants have merely limited the claimed method to
hard mask material systems made under any conditions that
produce these stress values. The examiner has not met the
initial burden of proof by presenting any convincing evidence or
reasoning as to why the specification does not reasonably convey
to one of ordinary skill in the art that appellants were in
possession of these stress values for hard mask layers.
Accordingly, we cannot sustain the examiner’s rejection of
claims 1-5 under 35 U.S.C. § 112, first paragraph.
B. The Rejections under 35 U.S.C. § 103
The examiner finds that Bohlen does not teach the use of an
oxynitride material that reduces compressive and tensile stress
in the mask layer but merely discloses that the hard mask should
be made from an oxide (Answer, page 6; specifically, Bohlen
teaches silicon dioxide as a hard mask material, as found by the
examiner on page 5 of the Answer). Similarly, the examiner
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