Appeal No. 2006-0996
Application No. 10/162,516
4.0eV) is associated with a single etching termination criterion as shown in Figures 6
and 7. This same set of wavelengths is associated with the selection criteria where
polysilicon is transparent and opaque, and where TiN produces observable changes in
Δ and Ψ over time. Therefore, we find that Lee fully meets the recitations of claim 54.
We also sustain the examiner’s rejection of each of the dependent claims on appeal
because appellants have not argued any of these dependent claims separately from the
independent claims discussed above.
We now consider the rejection of claims 10 and 11 under 35 U.S.C. § 103. In
rejecting claims under 35 U.S.C. § 103, it is incumbent upon the examiner to establish a
factual basis to
support the legal conclusion of obviousness. See In re Fine, 837 F.2d 1071, 1073, 5
USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the examiner is expected to make
the factual determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148
USPQ 459, 467 (1966), and to provide a reason why one having ordinary skill in the
pertinent art would have been led to modify the prior art or to combine prior art
references to arrive at the claimed invention. Such reason must stem from some
teaching, suggestion or implication in the prior art as a whole or knowledge generally
available to one having ordinary skill in the art. Uniroyal, Inc. v. Rudkin-Wiley Corp.,
6
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