Appeal No. 2000-0660
Application No. 08/985,278
re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950 (Fed. Cir.
1999) citing Continental Can Co. v. Monsanto Co., 948 F.3d 1264,
1268, 20 USPQ2d 1746, 1749 (Fed. Cir. 1991). "Inherency,
however, may not be established by probabilities or
possibilities. The mere fact that a certain thing may result for
a given set of circumstances is not sufficient." Id. citing
Continental Can Co. v. Monsanto, Co., 948 F.3d 1264, 1269,
20 USPQ2d 1746, 1749 (Fed. Cir. 1991).
Upon careful review of Hayabuchi, we fail to find that
Hayabuchi teaches:
. . . said insulation film comprising a nitride film
and top oxide film on said nitride film, the thickness
of said top oxide film being set to a thickness so that
the amount of transition of the carriers passing
through the top oxide film is almost equal to or larger
than the amount of transition of the carriers passing
through the tunnel film under a read voltage applied to
said gate electrode,
as recited in Appellants' claim 5. Rather, we find that
Hayabuchi forms a second oxide layer 5 (i.e. the top oxide layer)
having a thickness of approximately 4 nm over the silicon nitride
layer 4. See column 3, lines 65-68. Further, a silicon layer 6
is formed over layer 5 and a resist 8 is formed on layer 6. Then
the silicon layer 6 is completely etched away and approximately 1
nm or more of the second oxide layer 5 may remain. See column 4,
1010
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