Appeal 2007-1851
Application 10/020,461
Appellants’ position that Bazylenko’s teaching away from using nitrogen
demonstrates the nonobviousness of doing so. Rather, Bazylenko relates a
disadvantage in using nitrogen, i.e., waveguides suffer from high losses in
the wavelength range of 1.50 to 1.55 μm due to a large absorption peak in
this region (see para. bridging cols. 1 and 2). Bazylenko establishes that the
use of nitrous oxides was well known in the art as an oxidant for silane, and,
therefore, we find that it would have been obvious for one of ordinary skill
in the art to use a source of nitrogen as an oxidant with the reasonable
expectation of experiencing the disadvantage taught by Bazylenko. It is well
settled that the omission of a feature disclosed by the prior art along with its
attendant advantage is a matter of obviousness for one of ordinary skill in
the art. In re Thompson, 545 F.2d 1290, 1294, 192 USPQ 275, 277 (CCPA
1976); In re Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 9 (CCPA 1975); In re
Marzocchi, 456 F.2d 790, 793, 173 USPQ 228, 229-30 (CCPA 1972). In the
present case, Appellants have not demonstrated that their use of a nitrogen
source as an oxidant is not accompanied by the disadvantage set forth by
Bazylenko.
Concerning separately argued claims 2-11, 12, 22-28, 29-36, and
37-42, which recite pressure, temperature, and RF power densities within the
deposition chamber, we do not accept Appellants’ argument that “the
deposition conditions taught by Johnson do not amount to or suggest the
recited conditions for forming the high-density plasma as required by the
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