Appeal No. 1998-2919
Application No. 08/405,063
For the reasons set forth below, we cannot sustain this
rejection.
According to the examiner, "[i]t would have been obvious
to one of ordinary skill in the art to have second BPSG layer
in Lee . . . '333 with same phosphorus concentration as
disclosed in Flatley because Flatley shows the benefit of
having low phosphorus concentration in BPSG layer together
with low temperature heating provides no doping on underlying
layers"
(2nd Office Action, Paper No. 6, page 4, mailed June 5, 1996).
From our perspective, the aforenoted references do not
support the examiner's obviousness conclusion. Moreover, our
determination on this matter is compelled by several
deficiencies in the examiner's reference evidence.
In the first place, the Flatley teaching involves only a
single BPSG layer, yet the examiner has applied this single
layer teaching to the double layer construction of Lee '333
and more particularly has applied this single layer teaching
to the second rather than first layer of the Lee '333
construction. We see nothing and the examiner points to
nothing in these references which would have led an artisan to
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