Appeal No. 1999-2683
Application 08/754,564
the references, to avoid making a new ground of rejection.
See In re Kronig, 539 F.2d 1300, 1302, 190 USPQ 425, 426 (CCPA
1976) (the "ultimate criterion" of whether a rejection is new
is "whether appellants have had a fair opportunity to react to
the thrust of the rejection").
There are at least two problems with the Examiner's
rejection. First, we find that the CVD oxide layer 24 in Tsu
is not inherently an etch stop layer. Tsu does not expressly
or impliedly disclose the oxide layer 24 to be an etch stop
layer. Although statements by an inventor may be entitled to
less weight because they can be self-serving, we are persuaded
by the declarations of Mr. Mehta and the arguments that the
oxide layer 24 would not necessarily function as an etch stop
layer during overetching. Mr. Mehta has provided a reference
to Chu showing that CVD oxide layers are known to serve a
function in the prior art unrelated to the etch stop function;
thus, one skilled in the art would not assume layer 24 is an
etch stop layer. Mr. Mehta states that there is at most a 2:1
etch rate difference between the CVD oxide layer 24 and the
SOG layer 26, which is less than the 4:1 ratio one skilled in
the art would consider to be an etch stop layer. While we
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