Appeal No. 2005-1065
Application No. 10/095,053
As we see it, the examiner’s position is predicated upon the
doctrine of inherency. To wit, in accordance with the examiner’s
reasoning, the conventional technique for forming a gate oxide
film by oxidation involves use of oxygen gas (acknowledged prior
art), and Atkins teaches that oxygen, either in its atomic or
molecular form, is considered to be a radical; more specifically
a biradical. Thus, as stated in the examiner’s answer (pages 10-
11), since the materials and manipulative steps involved in
appellant’s claimed invention appear to be identical to those
embodied in the prior art, the same result must necessarily
occur. That is to say, when the prior art technique is
performed, the upper surface of the oxidation preventive film and
the semiconductor substrate must be oxidized at substantially
the same speed, as in appellant’s invention.
The examiner’s rationale is in line with the body of case
law on inherency exemplified by In re Best, 652 F.2d 1252, 1255,
195 USPQ 430, 433-34 (CCPA 1977). Although there is great force
of logic in the examiner’s position, we nevertheless find that
there is no question of inherency here.
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