Appeal No. 1999-0874
Application 08/726,733
factual findings of basic technology of MOS field-effect transistors made by Judge
McKelvie in Thorn EMI North America, Inc. v. Intel Corp., 928 F.Supp. 449, 450-51
(D. Del. 1996), affirmed, 157 F.3d 887, 48 USPQ2d 1181 (Fed. Cir. 1998). The claimed
invention recited in independent claims 1 and 7 on appeal is consistent with the
disclosed invention and would therefore not cause the artisan to misconstrue or
otherwise not be readily able to determine the metes and bounds of the claimed
invention within the second paragraph of 35 U.S.C. § 112. Therefore, the decision of
the examiner rejecting claims 1-13 under that statutory provision is reversed.
We must also reverse the examiner’s rejection of claims 7-13 under 35 U.S.C.
§ 102 as being anticipated by appellants’ disclosed prior art Figures 38 and 39 based
on the interpretation set forth at pages 6 and 7 of the answer. The examiner’s views
expressed there make no mention of the requirement of claim 7 that the second
insulation layer formed on the first insulation layer must have a "high etching selectivity
with respect to said first insulation layer."
According to the examiner’s view, the claimed first insulation layer is layer 5 in
Figures 38 and 39. The actual disclosed material in prior art Figures 26-39 is not
identified as to what this insulation material actually comprises. On the other hand, the
second insulating layer identified by the examiner in accordance with the rejection is
layer 9, which is identified as silicon oxide by the disclosed prior art in the specification
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