Appeal No. 2001-0482
Application No. 09/186,078
USPQ 2d 1693, 1697 (Fed. Cir. 2001). See also In re Lee, 277 F.3d 1338, 1344-45, 61 USPQ2d
1430, 1434-35 (Fed. Cir. 2002), in which the court required evidence for the determination of
unpatentability by clarifying that the principles of “common knowledge” and “common sense” may
only be applied to analysis of evidence, rather than be a substitute for evidence. The court has also
recently expanded their reasoning on this topic in In re Thrift, 298 F. 3d 1357, 1363, 63 USPQ2d
2002, 2008 (Fed. Cir. 2002).
In the present factual situation we find ourselves in agreement with Appellants’ contention
that factors such as Son’s complete silence as to the formation of gate oxide layers, as well as the
formation of an oxide film 25a at the trench corners after an oxidation process, suggests that any
conclusion as to thickness variations of a subsequently formed gate oxide layer could only be based
on impermissible speculation. In our view, the Examiner’s conclusion that a gate oxide layer
formed on the structure of Son would necessarily have a thickness at the trench edges greater or
equal than the remainder of the gate oxide layer could not come from any suggestion or teaching in
the Son or Fulford references themselves but rather only from Appellants’ own disclosure.
We have also reviewed the Liaw, Wolf, and Wristers references added to the Examiner’s
proposed combination of Son and Fulford to address the particular size, energy, and temperature
features of claims 4, 10, 12-15, 20, and 21. We find nothing, however, in any of these references
which would overcome the innate deficiencies of Son and Fulford discussed supra.
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