Appeal 2007-0488
Application 10/071,809
cannot be met by following the process as claimed. Therefore we AFFIRM
the rejection on appeal essentially for the reasons stated in the prior Decision
(remand), the Answer, as well as those reasons set forth below.
OPINION
We determine the following factual findings from the record in this
appeal:
(1) claim 1 on appeal requires a chlorine/oxygen environment having
an oxygen concentration of equal to or greater than 25% by
volume at a pressure of 2-40 mili-Torr to yield a metal silicide
etch selective to polysilicon with a ratio of etch rates of at least 30
(see claim 1 on appeal above);
(2) Nojiri discloses the same process and conditions as recited in
claim 1 on appeal but finds that the etching of the WSix stops
when the oxygen concentration is about 23% (see Fig. 2 on page
1792).1
The initial burden of presenting reasons or evidence to support a
rejection based on lack of enabling disclosure under the first paragraph of
§ 112 rests with the Examiner, and, if met, the burden shifts to Appellant.
See In re Wright, 999 F.2d 1557, 1561, 27 USPQ2d 1510, 1513 (Fed. Cir.
1993). The Examiner must present sufficient reasons or evidence to doubt
the truth or accuracy of any statement in Appellant’s supporting disclosure.
See In re Marzocchi, 439 F.2d 220, 224, 169 USPQ 367, 369-70 (CCPA
1971). The claimed objective must be met by following the process as
1 Appellant does not dispute or contest that the pressure and gas concentration (implicitly
volume %) taught by Nojiri are within the scope of the process conditions as disclosed
and claimed by Appellant.
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