Appeal No. 2001-0684
Application No. 09/205,668
appellants. Appellants argue that the plugs of Wollesen are positioned on two sides of
an air pocket or dielectric layer, but nothing suggests that the two plugs can or should
extend around a predominant part of either. (See brief at page 6.) Appellants further
argue that nothing in Wollesen suggests any other structure that extends around a
central portion of an insulating region. (See brief at page 6.) Appellants argue that
Chittipeddi does not remedy the above deficiency. (See brief at page 6.) We agree
with appellants. Appellants argue that the layer 215 as shown in Figure 5 of Chittipeddi
does not extend around a predominant part of any insulating layer. (See brief at page
6.) We agree with appellants.
The examiner maintains that Wollesen teaches a protection structure that
extends around the right hand region between features 4. (See answer at page 5.) We
do not agree with the examiner’s characterization of Wollesen. From our review of
Wollesen the “plugs” 15 are not shown to be extended, and we have no top view of the
device to determine the dimensions thereof. Therefore, it would require us to speculate
as to the configuration and extent of the extension of the plugs. Rejections based on
35 U.S.C. § 103 must rest on a factual basis with these facts being interpreted without
hindsight reconstruction of the invention from the prior art. The examiner and Board
may not, because of doubt that the invention is patentable, resort to speculation,
unfounded assumption or hindsight reconstruction to supply deficiencies in the factual
basis for the rejection. See In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177
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