Appeal No. 2003-1260 Page 7
Application No. 09/850,654
structure possesses all the claimed characteristics including the capability of performing the
claimed function, then there is a prima facie case of unpatentability. In re Ludtke, 441 F.2d 660,
663-64, 169 USPQ 563, 566-67 (CCPA 1971).
Given that there is a reasonable basis to believe that the device of Kimizuka is capable of
functioning as claimed, it is reasonable to shift the burden to Appellants to prove that, in fact, the
prior art device is not so capable. Best, 562 F.2d at 1254, 195 USPQ at 433. Appellants do not
provide any objective evidence of a patentable difference in structure.
Appellants seem to believe that the functional clause of the claim limits the claim to
placing the spacer over the metallic material in the via (Brief, p. 4). The claim is not so limited:
it requires placement for protection and this encompasses the placement of Kimizuka.
Even if the claim did require placing the spacer over the metallic material in the via,
Kimizuka would anticipate. As acknowledged in the “Background of Invention” section of
Appellants’ specification, aggressive design rules used in the prior art result in incomplete
overlap of conductive lines with underlying vias (specification, 2, ll. 5-6). Kimizuka is directed
to semiconductor devices with fine patterns and high density integration (col. 1, ll. 14-18, col. 2,
ll. 32-33, and col. 7, ll. 13-15). Incomplete overlap will occur in the devices of Kimizuka.
Differences in overlap inherently result in insulating films 13 over, and in contact with, metallic
material 8.
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