Ex Parte Fitzgerald

Board of Patent Appeals and Interferences

Apr 21, 2005

09859139 (B.P.A.I. Apr. 21, 2005)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte EUGENE A. FITZGERALD
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Appeal No. 2005-0864
Application No. 09/859,139
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ON BRIEF
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Before GARRIS, KRATZ and JEFFREY T. SMITH, Administrative Patent
Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1-29, which are all of the claims pending in
this application.
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BACKGROUND
Appellant's invention relates to a buried channel field
effect transistor. A relaxed SiGe layer or a relaxed SiGe cap
layer are each located adjacent the channel layer. An ion
implanted dopant supply is maintained in at least one of the
aforementioned SiGe layers A further understanding of the
invention can be derived from a reading of exemplary claim 1,
which is reproduced below.
1. A buried channel FET comprising:
a substrate;
a relaxed SiGe layer;
a channel layer adjacent said related SiGe layer;
a SiGe cap layer adjacent said channel layer; and
an ion-implanted dopant supply in at least one of the
relaxed SiGe layer and the SiGe cap layer, the dopant supply
extending along said channel and having an ion-implanted dopant
profile.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Murakami et al. (Murakami) 5,241,197 Aug. 31, 1993
Chu et al. (Chu) 6,059,895 May 09, 2000
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In rebuttal, appellant relies on the following reference of
record:
Plummer et al., Silicon VLSI Technology, Fundamentals, Practice
and Modeling, Chapter 8, pp. 451-454 (publication date - not of
record).
Claims 1-7, 10, 17, 19, 21-25 and 28 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Murakami.
Claims 8, 9, 11-16, 18, 20, 26, 27 and 29 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Murakami in
view of Chu.
We refer to the brief and reply brief and to the answer for
a complete exposition of the opposing viewpoints expressed by
appellant and the examiner concerning the issues before us on
this appeal.
OPINION
Upon review of the entire record including the respective
positions advanced by appellant and the examiner with respect to
the rejections that remains before us, we find ourselves in
agreement with appellant that the examiner has failed to carry
the burden of establishing a prima facie case of anticipation or
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Application No. 09/859,0864
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obviousness. Accordingly, we will not sustain the examiner's
stated rejections on this record substantially for reasons set
forth in appellant’s briefs.
§ 102(b) Rejection
The examiner has the initial burden of establishing a prima
facie case of anticipation by pointing out where all of the claim
limitations appear in a single reference. See In re Spada,
911 F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990); In re
King, 801 F.2d 1324, 1327, 231 USPQ 136, 138-39 (Fed. Cir. 1986).
In order for a claimed invention to be anticipated under
35 U.S.C. § 102, all of the elements of the claim must be found
in one reference. See Scripps Clinic & Research Found. v.
Genentech Inc., 927 F.2d 1565, 1576, 18 USPQ2d 1001, 1010 (Fed.
Cir. 1991).
Here, the examiner has not convincingly explained where
Murakami describes a structure which falls within the scope of
the so rejected appealed claims. Concerning the appealed claims’
requirement for an “ion-implanted dopant supply in at least one
of the relaxed SiGe layer and the SiGe cap layer, the dopant
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supply extending along said channel and having an ion-implanted
dopant profile” as recited in independent claims 1 and 21, the
examiner refers to “dopant profile 50, fig. 9B” of Murakami as
corresponding to that claimed feature. See page 3 of the answer.
As maintained by the examiner (answer, page 7):
In fig. 9B[,] of (sic) Murakami shows the ion implant
dopant profile P+ 50 region, [see] column 8, line 44,
extending in at least one of the relaxed SiGe layer 31
and the SiGe cap layer 32. Clearly, any[one of]
ordinary skill in the art can plainly see that P+ 50
region has an ion-implanted dopant profile (P+ is as
the result (sic) of ion implantation having a profile);
therefore [the] P+ 50 region [of Murakami] would [have
been] read on [by] the claim language. The Appellant
has failed to explicitly define what is the meaning of
the word “profile” in the specification; thus[,] the
words of a (sic) claim[s] must be given their broadest
reasonable interpretation consistent with the
specification and their “plain meaning[.]” [S]ee MPEP
2111.
The Examiner submits that Murakami’s structure
discloses the explicit[ly] recited ‘ion-implanted
dopant profile’ claimed limitation.
As explained by appellant in the briefs, however, the
examiner has not carried the burden of establishing where in
Murakami any detailed explanation of the profiles of the P+
regions (50, Fig. 9B) is presented that would necessarily
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1 See appellant’s brief, pages 5-8 and the reply brief.
require that element 50 of Figure 9B constitutes a structure
corresponding to appellant’s claimed “ion-implanted dopant supply
in at least one of the relaxed SiGe layer and the SiGe cap layer,
the dopant supply extending along said channel and having an ion-
implanted dopant profile.” See page 4 of the reply brief.
In this regard, we agree with appellant that the examiner
has not explained where Murakami offers any detailed description
of the profiles of the P+ regions (50, Fig. 9B) that would
necessarily describe a dopant supply extending along the channel
with the claimed type of profile.1 Inherency cannot be
established based on conjecture and/or probabilities or
possibilities. See In re Oelrich, 666 F.2d 578, 581, 212 USPQ
323, 326 (CCPA 1981).
On this record, we reverse the stated § 102(b) rejection.
§ 103(a) Rejection
The examiner does not explain how Chu would have suggested
employing a channel dopant supply with the claimed type of
profile in Murakami. Consequently, we also reverse the
examiner’s § 103(a) rejection, on this record.
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CONCLUSION
The decision of the examiner to reject claims 1-7, 10, 17,
19, 21-25 and 28 under 35 U.S.C. § 102(b) as being anticipated by
Murakami and to reject claims 8, 9, 11-16, 18, 20, 26, 27 and 29
under 35 U.S.C. § 103(a) as being unpatentable over Murakami in
view of Chu is reversed.
REVERSED
Bradley R. Garris )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
Peter F. Kratz ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
Jeffrey T. Smith )
Administrative Patent Judge )
PFK/cam
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