Appeal No. 2005-2351
Application No. 09/904,112
and 13 of the Answer.1 With regard to the rejection of claims 15
and 28, appellants argue that Kunitomo fails to disclose or
suggest oxidizing the second layer of crystalline tantalum oxide
(Brief, pages 8-9). This argument is not well taken since, as
noted by the examiner (Answer, pages 12-13), Kunitomo teaches
that the second tantalum oxide film is heat treated and
crystallized by the same treatment as used on the first tantalum
oxide film (e.g., see col. 19, ll. 47-58).
For the foregoing reasons and those stated in the Answer, we
determine that the examiner has established a prima facie case of
anticipation which has not been adequately rebutted by
appellants. Accordingly, we affirm the examiner’s rejection of
claims 1-6, 15, 22-30, 37-39, 74-76 and 100-105 under section
102(e) as anticipated by Kunitomo.
With regard to the section 102(e) rejection of claims 40-42
and 45-46, we determine that the examiner has not established
that all claimed steps have been described by Kunitomo (Brief,
page 9; Reply Brief, page 4). Claims 40-42 and 45-46 all require
a step of “oxidizing said upper layer electrode” (see claim 40 on
1We note that the examiner has applied additional references on page 13 of the Answer.
We have not considered these additional references as part of the evidence in this appeal. See In
re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
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