Appeal No. 2002-0508
Application No. 09/225,116
“pinning layer” and elements 77 or 86 constitutes a “microcavity
layer.” (Answer, page 5.) The examiner, however, has not
identified any evidence establishing that Yoshimori’s element 95
or 195 is a “pinning layer” as required by the appealed claims.
Specifically, the examiner has not established that Yoshimori’s
element 95 or 195 is capable of changing the shape of the
microcavity, adheres well to the microcavity layer, and is
fairly rigid such that it does not expand or shrink during the
anneal relative to the microcavity layer.
Accordingly, we cannot affirm the examiner’s rejection on
this ground as to claims 1, 2, and 4 through 7.
The rejection as it applies to claims 13, 14, and 16
through 19 stands on different footing. As pointed out by the
examiner (answer, page 10), Yoshimori discloses a semiconductor
device comprising at least one microcavity (105, 106, 107, 108)
within a layer (77, 86) of the device. (Figures 11-18.)
The appellants argue that “contact holes 105 and 106 (Fig.
13) extend through a plurality of layers, rather than being
enclosed in a single layer.” (Appeal brief, page 9.) This
argument lacks merit, because appealed claims 13, 14, and 16
through 19 do not recite this feature. In re Self, 671 F.2d
1344, 1348, 213 USPQ 1, 5 (CCPA 1982)(“Many of appellant’s
arguments fail from the outset because, as the solicitor has
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