Appeal No. 2005-0323 Page 8
Application No. 09/577,835
to appellants' assertion that upon modifying Gardner in view of
Mogami, the result would include oxide spacers and not a
composite spacer, the examiner asserts (answer, page 6) that
Gardner already teaches the composite spacer, and that Mogami is
merely relied upon to show the shape of the spacer which extends
above the surface of the gate. The examiner adds that the test
[for obviousness] is what the combined teachings of the
references would have suggested to an artisan.
Appellants respond (reply brief, page 2) that there is no
motivation to extend the nitride portion of the composite spacer
so that it extends to the top of the continuously vertical
sidewalls of the gate electrode stack. It is argued that the
examiner's proposed combination of Gardner and Mogami appears to
be based upon impermissible hindsight, and that without using the
present application as a guide, an artisan would not have been
motivated to make the modifications to the Gardner electrode in
the manner suggested in the final rejection.
From our review of the record, we find Gardner to be an
excellent reference. As shown in figure 9 of Gardner, the gate
electrode is topped by a silicide layer 122. Sidewall composite
layers 114 and 116 are in the form of a nitride layer on top of
an oxide layer, with the continuous sidewalls extending from a
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