Appeal No. 2004-1888
Application No. 09/477,126
would be capable of associating a specific dielectric layer
material with a specific etch stop layer material based upon a
reasonable expectation of success.
In an attempt to support their contrary view, the appellants
point out that Chiang’s listings of etch stop layers and
dielectric layers include materials such as silicon nitride which
are common to each. To the extent the appellants believe their
view is supported by the absurd combination of a silicon nitride
etch stop layer adjacent a silicon nitride dielectric layer, we
point out that an artisan would not have made such a combination
because it is skill, not stupidity, which is presumed in the art.
In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir.
1985). Viewed from this perspective, the previously mentioned
commonality militates for our position vis-à-vis a reasonable
expectation of success and against the appellants’ opposing view.
See In re O’Farrell, 853 F.2d 894, 904, 7 USPQ2d 1673, 1681 (Fed.
Cir. 1988) (obviousness under section 103 requires only a
reasonable, not an absolute, expectation of success).
4
Page: Previous 1 2 3 4 5 6 Next
Last modified: November 3, 2007