Appeal No. 2001-1697 Page 7
Application No. 09/059,718
would have even suggested to one of ordinary skill in the art
that using an infinitesimal amount of HCl and water such that
hydrogen amounts to less than 1 ppm of the gaseous atmosphere
would have been expected to result in an increased oxidation
rate.
Moreover, the examiner’s contends (answer, pages 5-7 and 12)
that the gaseous mixture of Kakoschke containing nitrous oxide
and ozone, which is disclosed as being used in a post-oxidation
step to remove hydrogen and not in the silicon oxide layer
forming oxidation step, could also be used in the oxidation step
of Kakoschke together with the HCl and water of Fujishiro. See
the paragraph bridging pages 5 and 6 and Example 2 of Kakoschke.
However, the examiner simply has not adequately explained
why one of ordinary skill in the art would turn to the disparate
disclosure of Fujishiro and significantly modify the process of
Kakoschke by not only adding HCl and water but also adding the
post-oxidation nitrous oxide and ozone to the oxidation step of
Kakoschke in a fashion so as to arrive at the here claimed
subject matter based on the teachings of the references.
Rejections based on § 103(a) must rest on a factual basis with
these facts being interpreted without hindsight reconstruction of
the invention from the prior art. See In re Warner, 379 F.2d
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