Appeal No. 1998-0088
Application 08/622,327
claimed hydrogen content "is considered to be inherent in the RNO
tunneling layer 14 of Fujii et al. or obvious to one of ordinary
skill in the art since Fujii et al. teach that eliminating nonreacted
hydrogen and hydrogen compounds from the film is desirable to prevent
film breakdown" (Final Office action at 4).
We are reversing the rejection because we agree with appellants
that the examiner has not cited any evidence which prima facie
establishes that Fujii's tunneling layer 14, which is located
entirely over and near the center of drain region 13, is located "at
least at a drain avalanche hot carrier injection region on said main
surface of said semiconductor substrate," as required by claim 15.
In fact, the location requirement in this limitation is not even
addressed by the examiner, who argues with respect to this
limitation only that Fujii's device inherently includes a drain
avalanche hot carrier injection region (Answer at 5). The examiner's
failure to explain why the claimed location requirement is inherently
satisfied fails to satisfy the PTO's initial burden of proof when
arguing inherency. Cf. In re King, 801 F.2d 1324, 1326, 231 136, 138
(Fed. Cir. 1986) (where the Patent Office has reason to believe that
a functional limitation asserted to be critical for establishing
8
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