Appeal 2007-1312
Application 10/997,715
the art to perform the HDPCVD process of Bazylenko with a deposition-
sputter ratio within the claimed range, based on the teachings of Liu and
Shieh (see Answer 7, first two paras.).
A principal argument advanced by Appellant is that the cited prior art,
particularly Liu, does not evidence the obviousness of using an HDPCVD
process to partially fill the gaps between the cores and then use a PECVD
process to completely fill the gaps with the uppercladding layer. Appellant
emphasizes the disclosure of Liu that the HDPCVD process “is performed
until the gap 36 is substantially filled. . . .” (col. 9, ll. 6-7). Appellant
contends that the Liu disclosure teaches away from the claimed step of only
partially filling the gaps with the HDPCVD process.
We are not persuaded by Appellant’s argument. First, we concur with
the Examiner that there is no meaningful, patentable distinction between the
claimed step of partially filling the gaps and Liu’s substantially filling the
gaps. The appealed claims fail to define any percentage value related to
partially filling. Therefore, the appealed claims broadly encompass methods
wherein less than 100% of the gaps are filled, e.g., 99%, 98%, etc. On the
other hand, it is reasonable to conclude that the substantial filling of Liu is
also less than 100%, e.g., 99%, 98%, etc. Consequently, we find the
Examiner’s reasoning to be sound that there is no patentable distinction
between Appellant’s partial filling and Liu’s substantial filling.
In addition, it is clear from Liu’s figure 4 that the first uppercladding
layer 38 does not completely fill the gap between the electrical components
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