Appeal No.2003-2001
Application No. 09/345,173
Unlike [the] claimed invention, [the] above prior
art doesn’t describe a step of descumming. The
lithography that is well known to one skilled in the
art includ[es] applying resist as a pattern for etching
layers. Cher shows the use of resist as a pattern for
etching (col. 2, line[s] 5-8). Because a photoresist
is used, descumming anistropically or isotropically is
well known to and generally available to one skill[ed]
in the [art] as a part of developing the photoresist in
order to remove all the small resist that is left from
the development step to provide a quality pattern.
(Please see Wolf and Savas et al. cited below).
Aside from the improper reference to Wolf and Savas et al.
in the answer1 for allegedly establishing the obviousness of the
claimed anisotropic descumming step, we cannot agree that the
examiner’s proposed modification of Chung based on the teachings
of Cher has been fairly established as being obvious within the
meaning of 35 U.S.C. § 103(a), on this record.
As noted by appellants in the brief (page 6), the examiner
has not established that Chung’s process would have required a
breakthrough etch step for removing native oxide on the
1 We do not consider Wolf and Savas et al. as being properly
before us in our consideration of the examiner’s rejections. This
is so since the examiner’s statement of the first rejection
(first sentence of numbered subitem 2 of item No. 10 of the
answer), like the statements of the other rejections before us,
do not list Wolf and Savas et al. as part of the evidence being
relied upon to establish obviousness. Also, see the Prior Art of
Record section of the answer, which is in accord in not listing
those references as evidence being relied upon. See In re Hoch,
428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970). We
also note that appellants do not recognize those references as
being applied by the examiner in their brief.
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