Appeal No. 2002-0321
Application No. 09/014,729
The examiner acknowledges that Agnello, the primary
reference, does not disclose the claimed step of "selectively
etching the exposed portion of the polysilicon layer to expose a
portion of the gate insulation layer after the step of
selectively etching the tungsten layer" (page 4 of Answer, second
paragraph). To remedy this deficiency the examiner cites Wu for
its disclosure of selectively etching the exposed portion of a
polysilicon layer in order to expose a portion of the gate oxide
layer.
The flaw in the examiner's reasoning is, as urged by
appellants, that there would have been no motivation for one of
ordinary skill in the art to perform the claimed step of etching
the silicon layer. This is so because "the polysilicon portion 9
is selectively etched prior to etching the metal and barriers 13
instead of after selectively etching the layer of tungsten as
required by the claim" (page 4 of Brief, first paragraph,
emphasis added). While we have no doubt that one of ordinary
skill in the art could have performed the claimed steps in the
order recited, this is not the standard for measuring obviousness
under § 103. In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125,
1127 (Fed. Cir. 1984). The examiner has failed to set forth the
requisite rationale underlying why one of ordinary skill in the
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