Appeal No. 2003-1365
Application No. 09/376,659
We make reference to the answer (Paper No. 14, mailed
September 25, 2002) for the Examiner’s reasoning, and to the
appeal brief (Paper No. 13, filed June 28, 2002) and the reply
brief (Paper No. 16, filed November 25, 2002) for Appellants’
arguments thereagainst.
OPINION
With respect to the 35 U.S.C. § 103 rejection of claim 10
over Gardner ‘298 and Kokubu, Appellants point out that Gardner
‘298 teaches a non-symmetrical spacer but does not address charge
migration and the additional HTO sidewall spacer (brief, page 6).
Appellants further refer to a first sidewall spacer mentioned at
Column 5, line 43 of Gardner ‘298 as an additional element on the
drain side of the gate stack and the use of a directional etch
process differing from the recited features of claim 10 (id.).
Additionally, Appellants argue that Gardner ‘298 mentions nothing
about the problem of the gate bird’s beak such that one of
ordinary skill in the art would have been motivated to use the
solution offered by Kokubu (brief, page 7 and reply brief, page
6). Appellants further assert that, without a basis for
combining the references, the prevention of charge migration into
the sides of the gate stacks cannot be inherent since inherency
must be derived from one single reference and not from several
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