Appeal No. 1999-0874
Application 08/726,733
as filed. Initially, it is thus clear that without an identified material of the first insulation
layer there can be no meaningful relative etching selectivity that may be determined
according to the examiner’s views. Moreover, the art generally would have regarded
such a general statement that layer 5 be insulating as being formed of silicon oxide like
the material used to form the second claimed insulating layer 9 according to the
examiner’s view. Even in this scenario, there would be no relative differential etching
selectivity between the two layers because they would be of the same material. When
all these factors are considered, even if we were to agree with the examiner’s views
with respect to the other elements of claim 7 on appeal, the rejection must be reversed
of independent claim 7 and its dependent claims.
For similar reasons, we reverse the rejection of claim 1 and its dependent claims
2 through 6 under 35 U.S.C. § 103 based upon the examiner’s views of appellants’
admitted prior art Figures 38 and 39 in view of Teng. The examiner has taken the
same views with respect to Figures 38 and 39 as with the rejection of claims 7-13 under
35 U.S.C. § 102. Therefore, essentially for the same reasons we reverse the rejections
of claims 1-6.
On the other hand, under the provisions of 37 CFR 1.196(b), we reject claims
1-13 under 35 U.S.C. § 103. As evidence of obviousness, we rely upon the
corresponding figures of appellants’ admitted prior art Figures 32-39 in view of Teng,
further in view of Muller and Kirk-Othmer.
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