Appeal No. 2004-0784
Application 09/826,078
steps as silicidation RTA and removal of unreacted metals, including nickel (pages 2437-39).
Kunishima discloses a heating apparatus that provides a temperature gradient during the
manufacture of semiconductor devices (e.g., cols. 2 and 11), as well as silicidation of a nickel
layer on the wafer by RTA and the removal of unreacted metal (cols. 5-6 and 10). Appellants
admit in the “background art” section of their specification that the “first wafer effect” was
known and, as was “fluctuating chamber hardware conditions results in process inconsistencies,”
which were overcome in part by a “bakeout” process (page 2).
Based on the evidence of record in the combined teachings of Gupta, the admitted prior
art, Wolf, Chen and Kunishima, we agree with appellants that there is no evidence with respect
to the use of a heating element in a step or steps subsequent to the steps involved with the
deposition of nickel on a single substrate. Thus, on this record, there is no evidence in support of
the examiner’s presumptions, and indeed, there is also no evidence in support for appellants’
presumption, with respect to whether it was known that the heating element is on or off in any
deposition chamber having any heating element, when a first treated substrate is removed from
the chamber and a second substrate is introduced into the chamber, as required by appealed claim
8.
The difference in the positions taken is, of course, that the examiner has the burden to
establish a prima facie case of obviousness based on substantial evidence in the record in order to
reject a claim under § 103(a). See, e.g., In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). Mere reliance on “common sense” where such basis is not established by
objective evidence and/or scientific reasoning, does not establish a prima facie case of
obviousness. See generally, In re Rouffet, supra (“hindsight” is inferred when the specific
understanding or principal within the knowledge of one of ordinary skill in the art leading to the
modification of the prior art in order to arrive at appellant’s claimed invention has not been
explained); Dow Chem., 837 F.2d at 473, 5 USPQ2d at 1531 (“The consistent criterion for
determination of obviousness is whether the prior art would have suggested to one of ordinary
skill in the art that [the claimed process] should be carried out and would have a reasonable
likelihood of success viewed in light of the prior art. [Citations omitted] Both the suggestion and
the expectation of success must be founded in the prior art, not in the applicant’s disclosure.”).
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