Appeal No. 2003-0799 Page 7
Application No. 09/567,818
aluminum layer 206 which is patterned” and a “second aluminum layer 212.” (specification, p.
7).
The differences in terminology coupled with how placement of various layers is
described in the claim render the claim indefinite and also indicate that Appellants are not
claiming what they regard as their invention. Particularly, it is not clear which of the polyimide
layers are encompassed by the “upper polyimide layer” and “another polyimide layer” language
of the claim and which aluminum layer is encompassed by the “aluminum patch” language of the
claim. Claim 3 requires that at least one aluminum patch be encased between the upper
polyimide layer and another polyimide layer. The specification does not describe any aluminum
structure as encased by polyimide layers nor is the claimed configuration apparent from the
figures. Figures 2B and 2C depict patterned aluminum 206 between the front side 208 of the
silicon wafer upon which silicon nitride 204 is used as a mask and first polyimide layer 210
(specification, p. 7, ll. 3-12). Patterned aluminum 206, therefore, appears to be encased by
silicon nitride and polyimide layers, not two polyimide layers. Second aluminum layer 212 is
not encased by any layers. Moreover, it is not clear if “another polyimide layer” refers to a third
layer of polyimide or if this language is meant to encompass the lower polyimide layer.
With regard to the examiner's rejection of claim 3 as obvious, it is our view that since the
appealed claim is indefinite and indeterminate in scope for the reasons stated above, it is not
possible to apply the prior art to this claim in deciding patentability without disregarding
portions of the express wording of the claim and thus resorting to speculation and conjecture as
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