Appeal No. 2001-1545
Application No. 09/199,666
Chau references a single “layer” throughout the disclosure, and we find no clear and
convincing rationale to use two layers to replace the single layer disclosed by Chau.
Similar argument is made alternatively by the examiner concerning the teachings
of Thomas. (See answer at page 8.) Here, the examiner maintains that Thomas
teaches and suggests the use of plural layers of dielectric based upon the language
that the “gate dielectric layer 40 can be formed as a composite layer of silicon oxide
and silicon nitride.” (See answer at page 8 and Thomas at Col. 3.) The examiner relies
on the term “composite” as being defined as “made up of distinct parts.” While we
agree that a composite may be separate layers, we do not find that Thomas teaches or
suggests the use of plural distinct layers since Thomas merely references a single
“layer” in the disclosure. The examiner maintains that the motivation for using two
dielectric layers can come from knowledge generally in the art. (See answer at page 9.)
While we agree with the examiner that the motivation can come from knowledge in the
art, we find that the examiner has not established what the level of skill in the relevant
art would have been nor has the examiner provided any teaching of the asserted
equivalence of the one layer dielectric and the two layer dielectric.
Since the examiner has not provided a teaching or convincing line of reasoning
supported by evidence suggesting that the single layer dielectric of Chau or Thomas be
replaced by two layers of dielectric, and since the examiner does not rely on the
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