Appeal No. 2001-1133 4
Application No. 09/014,806
relate specifically to CH3F. See Answer, page 4. Furthermore, the only examples found in
the specification are likewise directed to CH3F. Id. When the disclosure is coupled with
appellants statement that as the, “mechanism for nitride: oxide selectivity in their chemistry
is not well understood,” it follows that the invention as claimed is not enabled. Id. We
disagree.
As we stated above, the burden of proof of finding that the invention is not enabled
rests with the Office. The specification provides specific volume ratios for CH3F, diatomic
oxygen and carbon dioxide. See specification, pages 4 and 5. In addition, the
specification as originally filed, provides for an etchant gas comprising a hydrogen rich
fluorohydrocarbon, an oxidant and a carbon source. See original claim1. Furthermore,
original claim 4 specifically provides for a fluorohydrocarbon gas present at approximately
7% - 35% by volume. Based upon these findings, we conclude that appellants specifically
intended that the volume of fluorohydrocarbon gas apply to all fluorohydrocarbons and not
just the CH3F as argued by the examiner. Accordingly, we cannot agree with the
examiner’s conclusion that the ratios apply only to the sole aforesaid fluorohydrocarbon,
CH3F. Furthermore, the argument presented in the Answer, pages 4 and 5, based upon
the statement that since the, “mechanism for nitride: oxide selectivity in their chemistry is
not well understood,” it would not apply to other fluorohydrocarbons, is speculative in
nature and insufficient to support a rejection on the grounds of lack of enablement.
Accordingly, we cannot sustain the rejection under § 112.
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