Appeal No. 2003-1260 Page 6
Application No. 09/850,654
Appellants also argue that sidewall insulating film 13 would not protect metal 8 during
removal of a portion of the conducting barrier 7 adjacent to the via and over the layer 5 (Brief, p.
4). In other words, Appellants argue that the insulating film 13 of Kimizuka does not perform
the claimed function of protecting the metallic material in the via as recited in claim 1. This is a
functional limitation as acknowledged by Appellants (Brief, p 5).
We emphasize that the claim is directed to a semiconductor device. While Appellants are
free to define the device by what it does rather than by what it is, In re Swinehart, 439 F.2d 210,
212, 169 USPQ 226, 228 (CCPA 1971), such a method of claim drafting carries the risk that the
claims will not distinguish the structure from that of the prior art. Schreiber, 128 F.3d at 1478,
44 USPQ2d at 1432. The absence of a disclosure relating to function does not defeat a finding of
anticipation if the structure is the same. Schreiber, 128 F.3d at 1477, 44 USPQ2d at 1431.
There is reason to conclude that insulating films 13 of Kimizuka are inherently capable of
performing the function claimed. Insulating films 13 are formed along the sidewalls of the
conductive structures 9. The location puts more distance between the metallic material in the via
and any etching operation on the barrier layer. This is a protective location. The insulating films
13 are formed from silicon oxide, a material Appellants describe as useful for their spacers
(specification, p. 9, l. 28). Given the location and composition of the insulating films 13, it is
reasonable to conclude that the insulating films 13 would inherently function in the protective
manner claimed. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657-58 (Fed. Cir.
1990); In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433-34 (CCPA 1977). If the prior art
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