Appeal No. 2002-0647
Application No. 09/122,094
specification. Specifically, the examiner contends (Answer, page
3) that since Uenishi's dx is 0.2 :m, and Figure 1 shows the edge
of the head of gate electrode 8 extending over a portion of
element 15, and thus further than dx from the wall of the trench,
the edge of the head is more than 0.2 :m from the inner wall of
the trench, as recited in claim 1. Appellant, on the other hand,
asserts (Brief, pages 6-9) that the relative dimensions in
Uenishi's drawings are inconsistent with those disclosed, and
that, consequently, the drawings are clearly not drawn to scale
and cannot be relied upon. We have to agree with appellant.
The examiner argues (Answer, page 5) that "[t]he figures are
part of the specification, and can be relied upon as part of the
explicit teachings set forth." However, where the patentee does
not disclose that the drawings are drawn to scale, the drawings
are illustrative, not determinative. "Absent any written
description in the specification of quantitative values,
arguments based on measurement of a drawing are of little value.
In re Chitayat, 56 CCPA 1343, 408 F.2d 475, 161 USPQ 224 (1969)."
In re Wright, 569 F.2d 1124, 1127, 193 USPQ 332, 335 (CCPA 1977).
Nowhere does Uenishi suggest that the head portion of the
gate electrode overlaps element 15. Notwithstanding the
examiner's assertions at page 7 of the Answer, none of the
horizontal dimensions shown in Figure 1, for example, have the
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