Appeal No. 2001-0836
Application No. 08/991,448
of complying with the burden of presenting a prima facie case of
obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
With respect to the obviousness rejection of independent
claims 9 and 23 based on the combination of Yew and Lim,
Appellant asserts the Examiner’s failure to establish a prima
facie case of obviousness since all of the claim limitations are
not taught or suggested by the applied prior art references. In
particular, Appellant contends (Brief, pages 4 and 5; Reply
Brief, page 2) that the structure resulting from the Examiner’s
proposed combination would not have an HSG layer in contact with
a sidewall spacer layer as required by each of independent claims
9 and 23.
After careful review of the applied Yew and Lim references,
we are in general agreement with Appellant’s position as stated
in the Briefs. In our view, if Yew and Lim were combined in
accordance with the collective teachings of the references, the
polysilicon layer 1 would lie between the HSG layer and the
sidewall spacer, i.e., there would be no contact between the HSG
layer and the sidewall spacer as claimed.
We recognize that, in attempting to address the language of
appealed claims 9 and 23, the Examiner has suggested (Answer,
5
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