Appeal No. 2004-0582
Application No. 09/037,945
silicon nitride (“white ribbon” effect) which is then subsequently removed. Here, the
claim specifically recites that “growing . . . without forming silicon nitride inclusions . . .
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”. Here, we find that we
would have to resort to speculation in order to agree with the examiner’s conclusory
finding with respect to the deletion of the first step of the Cattus process.
While Cattus teaches that the wet process is an improvement over the known
process which we assume would be a dry process, we find insufficient detail in Cattus
concerning that prior art dry process such that the claimed invention would have been
anticipated by the prior art dry process being improved upon by Cattus. Therefore, we
would be required to speculate about the details of the process being improved upon by
Cattus. This we cannot do. In order for us to sustain the Examiner's rejection under 35
U.S.C. § 103, we would need to resort to speculation or unfounded assumptions or
rationales to supply deficiencies in the factual basis of the rejection before us. In re
Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389
U.S. 1057 (1968), rehearing denied, 390 U.S. 1000 (1968). Therefore, we cannot
sustain the rejection of independent claims 1 and 14, and their dependent claims 2, 4,
and 17.
Additionally, we do not find that Marshall remedies the deficiency in Cattus. We
find that while Marshall teaches a dry process, the pressure is significantly higher than
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