Appeal No. 2001-0118
Application No. 09/013,927
In place of these discarded theories, the examiner
presents in his answer a new theory to support his obviousness
conclusion regarding the “applying” step of appealed
independent claim 2. This new theory involves “traditional rf
sputtering” and is described on pages 5 and 6 of the answer
with the following language:
As noted above, the coil (16) in Barnes is
necessary to better ionize sputter particles so that
high aspect ratio holes can be filled. Traditional
rf sputtering does not utilize a coil. It can then
be reasonably stated that a substrate that does not
have high aspect ratio holes (i.e. a plain flat
substrate) would not need the coil because there are
no holes to fill in the substrate. Of course,
eliminating the coil involves losing the benefit of
utilizing the coil (namely, to provide better
ionization), but the court has held that a component
can be eliminated with a corresponding loss of
benefit. In re Kuhle, 526 F.2d 553, 188 USPQ 7
(CCPA 1975). In this case, the corresponding loss
of benefit would be the loss of filling high aspect
ratio holes. In other words, traditional rf
sputtering without a coil on a plain substrate would
occur. Therefore, in the traditional rf sputtering,
ionized sputtering would occur with the power
applied solely to the target. This fact has not
been disputed by Appellant and in fact has been
admitted by Appellant (Brief pages 19-20).
Appellant has made no claim to the level of
ionization that must occur. Therefore, a minuscule
amount of ionization (which will occur [in]
traditional rf sputtering as stated in Barnes and
admitted by Appellant) will meet the limitation of
claim 2. Appellant is correct to say that
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