Appeal No. 2004-2049
Application No. 10/158,467
between the later deposited high-k dielectric layer 4
and the underlying silicon substrate 2 and provides a
good interface with the silicon to reduce undesired
surface states in the silicon.
Yoon discloses what appears to be the same oxide layer as
claimed by appellants, made by a process similar to the process
disclosed in appellants’ specification. See Figures 1-6 and
columns 3-6 of Yoon. Because there is reasonable basis to
“believe” that the oxide layer of Yoon is identical or
substantially identical to appellants’ claimed oxide layer, the
burden shifts to appellants to show that in fact the oxide layer
of Yoon cannot reduce strain. We reiterate that the Patent
Office can require appellants to prove that a function or
property relied upon for novelty is not possessed by the prior
art otherwise meeting the limitations of the claims. In re
Best, 652 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977).
Absent such evidence, as in the present case, we affirm the
anticipation rejection.
II. The 35 U.S.C. § 103 rejection of claims 4 and 15 as being
obvious over Yoon in view of Shindo
We consider claim 41 in this rejection.
We refer to pages 4-5 of the answer. We refer to pages 8-9
of the brief regarding appellants’ response to the examiner’s
rejection.
Appellants argue that the combination of Yoon and Shindo is
improper because there is no teaching in either Yoon or Shindo
1 Although the copy of claim 4 as set forth in appellants’ appendix indicates
that claim 4 depends upon claim 1, because there is no antecedent basis for
“the perovskite material” recited in claim 4, we treat claim 4 in this appeal
as being dependent upon claim 3.
4
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