Appeal 2007-1274
Application 10/850,897
(Answer 4-8 and Reply Br. 4). In other words, the claimed “thermal oxide”
spacer is an oxide spacer further defined by a thermal oxidation process,
which does not render the claimed spacer patentably distinct from the spacer
suggested by the prior art references (id.).
To rebut the Examiner’s assertion, the Appellants rely on two
evidence literatures, namely S.M. Sze, VLSI Technology 117-118 2d ed.,
McGraw-Hill, Inc. 1988) and S.K. Ghandhi, VLSI Fabrication Principles
529 (2d ed., John Wiley and Sons, Inc. 1994), extensively to demonstrate
that the claimed thermally grown oxide spacer is patentably different from
the oxide spacer made from a deposition process (Br. 11-13 and Reply Br.
5-6). However, it is not clear from the record whether the Examiner
approved entry of the literature evidence relied upon by the Appellants. See
the record in its entirety. Moreover, contrary to the Appellants’ arguments
at pages 11 through 13 of the Brief, the “Evidence Appendix” at page 20 of
the Brief states that the Appellants do not rely on any evidence.
We observe that the Examiner refers to the literature evidence relied
upon by the Appellants at page 7 of the Answer. However, the Examiner
does not indicate whether the literature evidence is entered into the record
(id.). Nor does the Examiner address the sufficiency of the literature
evidence relied upon by the Appellants (compare Answer 7-8 with Br. 11-13
and Reply Br. 5-6).
The Examiner also does not fully analyze the teachings of Rao. We
note that Rao is not limited to forming a silicon nitride spacer as asserted by
the Examiner. We note that Rao teaches that any dielectric layer can be used
to form spacers (col. 2, ll. 46-48) and that the dielectric layer can include
thermally grown or deposited silicon dioxide (col. 2, ll. 25-26).
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