Appeal No. 2003-2079
Application No. 09/207,972
in the Kizilyalli ‘435 application (Brief, page 4).2 The examiner
has failed to establish where these two claimed limitations are
supported, under sections 120/112, by the parent Kizilyalli
application ‘435. Accordingly, the examiner has not established
that Kizilyalli ‘238 should be accorded the effective filing date
of Dec. 22, 1997. Therefore Kizilyalli ‘238 only has an effective
filing date of June 25, 1999, and is not available as prior art to
reject the claims on appeal. Thus we cannot sustain the examiner’s
rejections based on Kizilyalli ‘238.
The decision of the examiner is reversed.
REMAND
As discussed above, the Kizilyalli ‘435 application was issued
as the ‘854 patent on Apr. 15, 2003 (Answer, page 5; Reply Brief,
page 3). As stated by the examiner (Answer, page 6), the claimed
subject matter on appeal is obvious over “the Kizilyalli parent
patent” in combination with Wu and Chou. Appellants and the
examiner have previously agreed that the effective filing date of
the Kizilyalli ‘435 application (now the ‘854 patent) establishes
2These two limitations are found in claim 1 (“said
dielectric material layer having an equivalent electrical
thickness of 2.2 nm or less”) and claim 11 (“an electrode
disposed directly on said at least one layer of high-k dielectric
material”).
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