Appeal No. 1998-1727
Application No. 08/340,097
927 F.2d 1565, 1576, 18 USPQ2d 1001, 1010 (Fed. Cir. 1991). The rejection under
35 U.S.C. § 102(e) is reversed.
Regarding the rejection under § 103 over the de Lyon reference, the Examiner
argues that it would have been obvious to one of ordinary skill in the art to determine
through routine experimentation the optimum operable number of monolayers in order to
prevent diffusion of impurities. (Answer, p. 4). The de Lyon reference describes the use
of a passivation layer containing one monolayer. As stated above, de Lyon discloses a
passivation layer having more than one monolayer will cause a disruption to the epitaxial
process. In essence, de Lyon is indicating that a suitable epitaxial film cannot be formed
when the passivation layer has more than one monolayer. Thus, according to de Lyon, a
passivation layer having one monolayer is the optimum. The Examiner does not
specifically address de Lyon’s concern with the disruption to the epitaxial process. In
order for a prima facie case of obviousness to be established, the teachings from the
prior art itself must appear to have suggested the claimed subject matter to one of
ordinary skill in the art. See In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147
(CCPA 1976). The rejection of the claims under 35 U.S.C. § 103 over de Lyon is
reversed.
Regarding the rejection of claim 24 under § 103, the Examiner relies on the
combination of de Lyon and Kasai. The Examiner relies on Kasai to disclose germanium
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