Appeal No. 2003-1971
Application No. 09/489,970
277 F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). With
these principles in mind, we commence review of the pertinent
evidence and arguments of Appellants and Examiner.
Appellants point out that claim 1 recites that the oxide is
used for a first gate spacer and that silicon nitride is used for
a second gate spacer. Appellants argue that Tsai '890 claims a
composite spacer comprising silicide which has no commonality
with the instant invention.
The question is not what Tsai '890 claims but instead what
Tsai '890 teaches. Tsai '890 teaches a double layer gate spacer
on the sidewalls of the partially completed gate electrode
structure, said double layer gate spacer containing an inner gate
spacer 50 comprising an oxide layer that is immediately adjacent
to and overlying the sidewalls of the partially completed gate
electrode structure and outer gate spacer layers 60 and 62
comprising silicon nitride that overlays said inner layer thereby
creating an intermediate completed gate electrode structure as
recited in Appellants' claim 1. See Tsai '890, column 4, line 50
through column 5, line 17. Therefore, Tsai '890 does teach that
the oxide is used for a first gate spacer and that silicon
nitride is used for a second gate spacer.
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