Appeal No. 2000-1004
Application 08/743,628
We decide the ground of rejection of appealed claim 15 over the combined teachings of
Abernathey and Cleeves on the same basis because the examiner has shown that the process
encompassed by appealed claim 15, that is, with the additional step with respect to the process
of appealed claim 9, would be a conventional modification of the process of Abernathey as
shown by Cleeves (answer, page 6), and appellants’ traverse, that Cleeves does not teach
antireflective layers (brief, page 11), is rebutted by the examiner, finding that the claimed step
involves the photoresist layer which is taught by Cleeves (answer, page 13).
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in the combined teachings of Abernathey and
Cleeves with appellants’ countervailing evidence of and argument for nonobviousness and
conclude that the claimed invention encompassed by appealed claim 15 would have been
obvious as a matter of law under 35 U.S.C. § 103(a).
Turning now to the ground of rejection of appealed claim 1 based on the combined
teachings of Abernathey and Tsukamoto, we agree with appellants (brief, page 7; reply brief,
pages 3-4) that one of ordinary skill in the art would not have combined the teachings of
Abernathey and Tsukamoto.2 We find that Abernathey teaches that the titanium nitride layer
prevents “silicon transport form the barrier layer [of silicon or silicon dioxide] to the aluminum
containing metal layer” (col. 2, line 68, to col. 3, line 2), and the examiner has not established
that the silicon oxynitride (SiON) antireflective layer of Tsukamoto would perform the same
function as the titanium nitride layer if the oxynitride layer was substituted therefor (see
answer, pages 5 and 7-8).
We note that Tsukamoto does disclose a layer of “silicon oxide” as “offset oxidized
film 11” (col. 7, lines 14-15) in the FIGs. thereof , e.g., FIGs. 2 and 3, but the examiner does
2 The issue here is whether one of ordinary skill in the art would have combined the references,
not whether Abernathey would have taught away from the use of SiON in place of TiN because
the reference does not make any reference to the former material. See In re Gurley, 27 F.3d 551,
552-53, 31 USPQ2d 1130, 1131-32 (Fed. Cir. 1994) (“A reference may be said to teach away
when a person of ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction divergent from the path
that was taken by the applicant. The degree of teaching away will of course depend on the
particular facts; in general, a reference will teach away if it suggests that the line of development
flowing from the reference’s disclosure is unlikely to be productive of the result sought by the
applicant. [Citations omitted.]”).
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