Appeal 2007-2983
Application 10/029,583
Dependent claim 3 further requires that the nanoparticles used as a
mask have an average particle size of around 1 to 10 nm.
In addition to the arguments made against the Examiner’s rejection of
independent claim 1, Appellants note that Hatakeyama is directed to the
formation of nanoscale cones not the formation of pores. Appellants
maintain that the Examiner is selecting bits and pieces from unrelated prior
art in asserting that the mask particle sizes of claim 3 would have been
obvious to employ in Kikuchi’s process.
The difficulty we have with Appellants’ argument is that Kikuchi, as
we explained above, provides the incentive for one of ordinary skill in the
art to employ smaller mask particles to form smaller pores and ultimately
smaller feature sizes. Here, Appellants have not fairly established why one
of ordinary skill of the art would not have found it obvious to employ
smaller spheres or particles on the order of 10 nm in size for masking in the
process of Kikuchi in light of Kikuchi’s desire for small feature sizes, given
that such particles are readily available for use as an etching mask as shown
by Hatakeyama (Hatakeyama; col. 2, ll. 41-49). In this regard, we note that
the Examiner is not relying on Hatakeyama for a teaching as to making a
particular feature or for reactive ion etching but rather for the capability of
micro fabricating with nanoscale masking particles and etching (see, e.g.,
Hatakeyama; col. 5, ll. 40-53). Rejected claim 3, for example, is not limited
to a process for making a particular device after a pore is formed as
evidenced by the open “comprising” transitional term used in claim 1, from
which claim 3 depends. As such, much of the argumentation furnished by
Appellants in the Brief appears to be misdirected. On this record, we affirm
the Examiner’s obviousness rejection of claims 3, 21, and 22.
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