Appeal No. 2004-0657
Application No. 09/845,604
arguments concerning this rejection are in conflict with the well
established case law cited above and therefore are unconvincing.
As a consequence, we also hereby sustain the Examiner’s § 103
rejection of claims 4 and 6 as being unpatentable over Muller.
We cannot sustain, however, the Examiner’s § 102 rejection of
claims 7 and 10 or of the claims which depend therefrom. Each of
claims 7 and 10 requires removing an upper portion of gate material
until the insulation cap of the stack or fin is exposed. The
Examiner considers this claim requirement to be satisfied by
Muller’s disclosure at lines 35-42 in column 7 (e.g., see pages
15 and 19 of the answer). However, this disclosure relates to
removing polysilicon layer 25 to thereby expose nitride layer 22
as shown in Figures 11A and 11B. This nitride layer 22 does not
“read on” the insulation cap of the stack or fin which is exposed
during practice of the method defined by claims 7 and 10. Indeed,
layer 22 is without question physically separated from patentee’s
fin (or stack) 4 as plainly revealed in the aforementioned Figures
11A and 11B.
For this reason, we cannot sustain the Examiner’s § 102
rejection of claims 7–11, 13, 14 and 16 as being anticipated by
Muller. Similarly, we also cannot sustain the Examiner’s § 103
rejection of claims 12 and 15 as being unpatentable over Muller
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