Appeal No. 2003-1365
Application No. 09/376,659
Therefore, we find Appellants’ arguments that because
Gardner ‘298, as the primary reference, does not recognizes the
problem of the gate bird’s beak, one of ordinary skill in the art
would not have combined the references and have used HTO as the
second side wall layer. In this case the reason for the
modification comes not only from the benefits of preventing the
gate bird’s beak by using the particular HTO/nitride/HTO
combination as the side wall layers in Kokubu, but from the fact
that HTO is commonly used as the second layer in combination with
a nitride or oxide layer and as a protective layer on the sides
of gate stacks. Although one may accurately cite the prevention
of the gate bird’s beak as a reason for using the specific
HTO/nitride/HTO configuration disclosed by Kokubu, the general
teaching of the reference related to the use of HTO as the second
side wall layer (described as the “Related Art” and depicted in
Figure 8) leads one of ordinary skill in the art to successfully
substitute HTO for oxide layer 38 of Gardner ‘298. In fact, the
Examiner correctly recognizes the specific HTO and nitride layers
combination disclosed by Kokubu as the remedy for the gate bird’s
beak but passes over the teachings related to the use of HTO as a
conventional layer in side wall layers structure on the side of a
gate stack. In view of the analysis above, we find the
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