Appeal No. 2004-0859
Application 08/866,456
reliable, and does not adversely affect the step coverage of the
subsequently formed upper wire 17, with resultant good multilayer
wires” (col. 5, lines 42-45; figure 4D).
The appellant’s independent claims also require that the
lower and upper opening portions are self aligned with each
other. The examiner points out that this is a product-by-process
limitation (answer, pages 17-20). The examiner, however, does
not provide evidence or reasoning which shows that Sato’s two
successive lithographic processes produce a product which is
identical or substantially identical to one having lower and
upper opening portions which are self aligned. See In re
Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980); In re
Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977); In
re Fessmann, 489 F.2d 742, 745, 180 USPQ 324, 326 (CCPA 1974).
Instead, the examiner relies upon Liu for a suggestion to make
Sato’s lower and upper opening portions self aligned (answer,
pages 6 and 8). Liu discloses a method for making a tapered
opening through an insulating layer (20) to an underlying
source/drain region (12) (col. 4, lines 42-55). Liu sequentially
1) anisotropically etches the insulating layer through an opening
in a resist mask to form an opening in the insulating layer,
2) using the same mask, isotropically etches the insulating layer
5
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