Appeal No. 2006-0293
Application No. 10/071,809
invention, namely the ratio of etch rates of at least 30. Furthermore, the examiner has
not commented on the Nojiri article cited by appellant (Brief, page 2), which teaches that
the etch rate of tungsten silicide increases up to an oxygen concentration of 10% but
etching suddenly stops when the oxygen concentration exceeds 25% (page 1792, left
column and Figure 2).
For the foregoing reasons and those stated in the Brief, we determine that the
examiner has failed to establish a prima facie case of obviousness with respect to the
reference evidence. Therefore we cannot sustain the examiner’s rejection of claims 1,
3-12, 14, 15, 21 and 27 under section 103(a) over Tsai.
With regard to the rejection of claims 22, 23 and 25 (Answer, page 4), the
examiner applies Langley to show use of a “breakthrough” etch. Therefore, Langley
fails to remedy the deficiencies in the rejection discussed above. Accordingly, this
rejection is also reversed.
B. The Remand
Pursuant to our authority under 37 CFR § 41.50(a)(1)(2004), we remand this
application to the jurisdiction of the examiner for actions consistent with our remarks
below.
The examiner and appellant should consider the patentability of the claimed
subject matter in view of the requirements of
35 U.S.C. § 112, first paragraph, regarding the scope of the enabling disclosure.
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