Appeal No. 2006-1107
Application No. 09/382,442
Arguments which appellant could have made but chose not to make
in the brief have not been considered and are deemed to be waived
(see 37 CFR § 41.37(c)(1)(vii)(2004)).
We consider first the rejection of claims 1, 2, 4, 5 and
7-10 based on Nakanishi, Lisenker and the admitted prior art.
The examiner essentially finds that Nakanishi teaches the claimed
invention including a step of heating a semiconductor layer in
which hydrogen is inherently incorporated into the layer. The
examiner admits that Nakanishi fails to teach the claimed heating
in an atmosphere containing a hydrogen isotope. The examiner
notes that the admitted prior art teaches a passivation process
using hydrogen. The examiner finds that it would have been
obvious to the artisan to perform a passivation process on the
device of Nakanishi using hydrogen as taught in the admitted
prior art. Finally, the examiner cites Lisenker as teaching the
advantages of replacing hydrogen with deuterium. The examiner
finds, therefore, that it would have been obvious to the artisan
to replace the hydrogen atmosphere of the admitted prior art with
a deuterium atmosphere as taught by Lisenker (answer, pages 3-4).
Appellant argues that Nakanishi teaches oxidizing the
device in a dry oxygen atmosphere which excludes hydrogen or a
hydrogen-containing material such as water. Because Nakanishi
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