Appeal No. 1999-2347
Application 08/892,560
hold below, their claims are unpatentable on grounds which do not
involve Woo.
The Examiner states that Woo claims the rejected invention
and, thus, the declaration is inappropriate (EA19).
Appellants argue that Woo does not claim the same invention
because the presently claimed invention only requires the first
five steps of Woo's claim 1 (Br10).
Appellants erroneously interpret "the same patentable
invention" as requiring identical claims, apparently in the sense
of the "same invention" for same invention-type double patenting
under 35 U.S.C. § 101, when the actual legal test of 37 CFR
§ 1.601(n) is anticipation or obviousness.
No patentability analysis is provided by the Examiner.
Nevertheless, Appellants admit that Woo anticipates claim 21
because it is said that Woo claims the five steps of claim 21 in
addition to other steps (Br10). Woo recites that the etch stop
layer prevents resputtering of the conductor during etching of
the second dielectric layer, but does not recite etching the etch
stop layer without resputtering, i.e., "without forming
non-conductive back-sputtered compounds on sidewalls of the via."
Nevertheless, one of ordinary skill in the art would have
appreciated that etching of the etch stop layer should not cause
back-sputtering or the purpose of using the etch stop layer would
be negated. Appellants do not argue that the silicon nitride
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