Appeal No. 2006-0293
Application No. 10/071,809
col. 8, ll. 5-7, with Figure 5). It is clear from Figure 5 of Tsai that the selectivity
decreases when the oxygen flow rate is increased from 0 to 10 sccm, although the
selectivity increases at a constant oxygen flow rate when the flow rate of nitrogen
increases. It is also clear from Figure 4 of Tsai that, at any nitrogen flow rate, the
polysilicon etching rate undesirably increases with increasing oxygen flow rates from 0
to 10 sccm.
Additionally, as correctly argued by appellant (Brief, page 6), Tsai teaches away
from the use of “excessively high” flow rates of oxygen (Tsai, col. 7, ll. 15-20).
Furthermore, Tsai teaches preferred volume flow ratios where the maximum volume
flow of oxygen could be 13.89% (col. 8, ll. 17-22, where the oxygen/nitrogen ratio is 5:1
and the chlorine to oxygen+nitrogen ratio is 5:1). Finally, Tsai exemplifies about a 3%
by volume oxygen plasma gas to achieve a selectivity of about 4-5 (col. 9, ll. 23-45).
“Under the proper legal standard, a reference will teach away when it suggests
that the developments flowing from its disclosures are unlikely to produce the objective
of the applicant’s invention. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).” Syntex v.
Apotex, 407 F.3d 1371, 1380, 74 USPQ2d 1823, 1830 (Fed. Cir. 2005). General
skepticism of those in the art is relevant and persuasive evidence of non-obviousness.
See Gillette Co. v. S.C. Johnson & Son, Inc., 919 F.2d 720, 726, 16 USPQ2d 1923,
1929 (Fed. Cir. 1990). The disclosures of Tsai, as discussed above and in the Brief,
certainly suggests developments that are unlikely to produce the objective of appellant’s
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