Appeal No. 2003-1365
Application No. 09/376,659
to the rejection of claim 10, HTO is commonly used as the second
layer in combination with a nitride or oxide layer as the side
wall or protective layer on the sides of gate stacks. Therefore,
one of ordinary skill in the art would have found the combination
obvious and would have been led to successfully substitute HTO
for the nitride or SiON layer of Pham.
As discussed above, the appealed claims recite the use of
HTO, as suggested by Kokubu, for the second protective layer in
the same process steps as those recited in claims of Pham.
Accordingly, we sustain the rejection of claims 1-7, 10-17, 21
and 22 under the judicially created doctrine of obviousness-type
double patenting over claims 1-14 of Pham (U.S. Patent No.
6,248,627) in view of Kokubu.
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