Appeal No. 1999-0382
Application 08/436,133
silicon oxide layer, but selection of the appropriate materials
and processes, known to those skilled in the art, will result in
a dielectric layer having voids (Br7). The Examiner acknowledges
that voids may not occur in every silicon dioxide layer (EA9).
Based on these arguments, we find that voids are not
inherent in every dielectric or silicon oxide layer.
The Examiner states that "[the voids] were not affirmatively
incorporated in the material by any method disclosed by the
Applicant" (FR3; EA4). The Examiner further states (EA8):
In claim one, there is no mention of a manufacturing process
that forms the third dielectric layer - none. Further,
there are no processes indicated in claim one that were
relied upon to form voids in the dielectric layer.
According to the claim, the voids simply exists [sic] in the
dielectric layer. The language in claim one simply states,
"said third dielectric layer containing voids."
Appellant responds that the Examiner's statements are correct
because voids are a structural limitation (RBr5).
The voids are a structural limitation. Claim 1 is an
apparatus claim (strictly speaking a product-by-process claim)
and it does not need to recite the material or process of
producing "said third dielectric layer containing voids."
The Examiner states (EA4): "Therefore, since the material
of the prior art is the same as the one claimed, the prior art is
also considered to have 'voids'." The Examiner acknowledges that
voids may not occur in every silicon dioxide layer, but states
that the specification discloses deposition of an oxide at
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