Appeal No. 1998-2966
Application 08/605,566
that it would have been obvious to incorporate the conductive
layer of Higuchi into the APA or Kobayashi "in order to provide
more protection for the gate electrodes, so that the performance
of the memory cells can be improved" (FR4) clearly and
impermissibly relies on Appellant's disclosure for the
motivation. While it is uncontested that the provision of a
conductive silicon layer as taught by Higuchi in the APA or
Kobayashi would inherently perform the (unclaimed) function of
preventing floating gate ion invasion, "a retrospective view of
inherency is not a substitute for some teaching or suggestion
which supports the selection and use of the various elements in
the particular claimed combination," In re Newell, 891 F.2d 899,
901, 13 USPQ2d 1248, 1250 (Fed. Cir. 1989). Thus, the Examiner's
reasoning in the final rejection is not persuasive.
In the examiner's answer, the Examiner modifies the
obviousness reasoning to conclude (EA5; see also EA7, EA9):
[I]t would have been obvious to one of ordinary skill in the
art at the time the invention was made to include [sic,
provide] the memory device of the admitted prior art or
Kobayashi with the impurity introduction conductive
layer formed in the contact hole . . . because it would have
imparted to the memory device of the admitted prior art or
Kobayashi the advantageous benefits of minimizing the
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