Appeal No. 2006-0293
Application No. 10/071,809
Appellant is claiming a method that is the same or substantially the same as disclosed
by Nojiri, as discussed above. Nojiri discloses an etching method for the same tungsten
silicide/polysilicon layers as here claimed, under the same pressure and other reaction
parameters, and tests the process at oxygen concentrations of 25% as per appellant’s
claim 1 (pages 1791-1792). However, as noted by appellant (specification, page 7, ll.
15-17), appellant discloses and claims a selectivity ratio of at least 30 while Nojiri
discloses that the “etching suddenly stops” at an oxygen concentration of 25% (page
1792, left column). The only difference between the method of Nojiri and appellant’s
disclosure is the teaching of using a “breakthrough” etch using carbon tetrafluoride
(specification, page 7, ll. 17-20). Accordingly, the enabling disclosure appears to be
lacking any teachings of how to achieve the desired result as compared to the
undesired results of the prior art method, absent the use of a breakthrough etch using
carbon tetrafluoride. This “breakthrough” etch is only specifically claimed in claim 23 on
appeal. Therefore it would appear that the remaining claimed subject matter is not
supported by an enabling disclosure, since Nojiri is evidence that the claimed objective
cannot be met by following the process as claimed. See In re Mayhew, 527 F.2d 1229,
1233, 188 USPQ 356, 358 (CCPA 1976).
Accordingly, we remand this application to the jurisdiction of the examiner for
consideration of the issue raised above.
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