Appeal No. 2004-0582
Application No. 09/037,945
a genuine issue of material fact." Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617,
citing McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576, 1578, 27 USPQ2d
1129, 1131 (Fed. Cir. 1993) .
Further, as pointed out by our reviewing court, we must first determine the scope
of the claim. "[T]he name of the game is the claim." In re Hiniker Co., 150 F.3d
1362,1369, 47 USPQ2d 1523, 1529 (Fed. Cir. 1998). Therefore, we look to the
limitations set forth in independent claim 1. Appellants set forth “a process of forming
an integrated by growing a silicon dioxide field isolation region on a semiconductor
wafer without forming silicon nitride inclusions in said field isolation region exclusively by
means of a hydrogen-free oxidant at a pressure less than about 30 atm; and forming a
gate oxide without a prior sacrificial oxidation.” (Emphasis added.)
The examiner maintains that it would have been within the scope of one of
ordinary skill in the art to omit the first stage of oxidation, which is a wet process, in the
process of Cattus and that the process would be useful to form an oxide isolation region
although the process would be longer in duration. (See answer at page 4.) We cannot
agree with the examiner that it would have been obvious to simply omit the first wet step
and continue with the remainder of the process. We find no convincing line of
reasoning from the examiner why the omission of this step would have been as simple
as the mere omission and a reduction of speed of the process. While Cattus teaches
that there is an increase in the yield, there is also a formation of a narrow stripe of
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