Appeal No. 2004-2049
Application No. 10/158,467
OPINION
I. The rejection of claims 1, 3, 5-7 and 12-14 under 35 U.S.C.
§ 102(b) as being anticipated by Yoon
We consider claim 1 in this rejection.
We refer to pages 3-4 of the answer regarding the
examiner’s position in this rejection. We refer to pages 7-8 of
the brief regarding appellants’ rebuttal in this rejection.
Appellants argue that Yoon does not teach any pressures
under which the oxide layer is grown, and therefore one cannot
conclude or infer that Yoon teaches a strain reducing oxide
layer. Brief, page 7. Hence, the dispositive question is
whether “a strain reducing” oxide layer is disclosed in Yoon.
On this record, we answer this question in the affirmative.
As an initial matter, we note that it is well settled that
“when the claimed and prior art products are identical or
substantially identical or are produced by an identical or
substantially identical process, the PTO can require an
applicant to prove that the prior art does not necessarily or
inherently possess the characteristics of his claimed product.”
In re Best, 652 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA
1977).
In the instant case, we find that the specification,
beginning at line 34, on page 34, through page 3, line 6,
recites as follows (text in bold for emphasis only):
In more detail, the wafer 1 includes an
exemplary silicon substrate 2 which has grown
thereon an oxide layer 3, here a silicon dioxide
layer with the silicon coming substantially
[from] the substrate 2. The layer 3 is preferably
grown in a conventional dry oxidizing atmosphere at
0.25 to 10 torr and 650 to 900°C to form 1 to 2 nm
thick oxide [emphasis added], the thickness not
being critical but of sufficient thickness to . . .
The layer 3 is believed to help reduce strain
3
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