Appeal No. 2000-1848
Application No. 08/810,920
Appealed claims 1-4, 6-18 and 20 stand rejected under
35 U.S.C. § 103 as being unpatentable over Higashikawa in view
of Katz.
Upon careful consideration of the opposing arguments
presented on appeal, we are in agreement with appellants that
the examiner has failed to establish a prima facie case of
obviousness for the claimed subject matter. Accordingly, we
will not sustain the examiner's rejection.
There is no dispute that Higashikawa discloses a method
of etching a first photoresist layer much like the claimed
method with the exception that Higashikawa does not disclose
the use of a helicon-type etching apparatus for etching with
the nitrogen gas. Since Katz discloses the use of a helicon-
type etching apparatus for patterning a photoresist, the
examiner concludes that it would have been obvious for one of
ordinary skill in the art to use the helicon-type apparatus
disclosed by Katz in the method of Higashikawa.
The flaw in the examiner's reasoning in support of the
legal conclusion of obviousness can be found in the statement
at page 5 of the Answer: "The apparatus of Katz is
functionally equivalent to the apparatus of Higashikawa in
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