Ex Parte Kim

Board of Patent Appeals and Interferences

Dec 20, 2002

08991448 (B.P.A.I. Dec. 20, 2002)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte UNSOON KIM
__________
Appeal No. 2001-0836
Application No. 08/991,448
__________
ON BRIEF
__________
Before HAIRSTON, BARRETT, and RUGGIERO, Administrative Patent
Judges.
RUGGIERO, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on the appeal from the Examiner’s
rejection of claims 9, 11-14, and 23, which are all of the claims
pending in the present application. Claims 1-8, 10, and 15-22
have been canceled.
The claimed invention relates to a flash memory having
plural stacks in the core memory region, with each stack having
at least one polysilicon layer on a tunnel oxide layer and at
least one hemispherical-grained (HSG) layer above the polysilicon
Appeal No. 2001-0836
Application No. 08/991,448
1Both Appellant and the Examiner should note that the word
“layer” is missing after “polysilicon,” second occurrence, at
line 4 of claim 9 as it appears in the amendment filed November
18, 1999, Paper No. 9.
2
layer. Each stack further includes at least one sidewall layer,
with the HSG layer overlapping and contacting the sidewall layer.
According to Appellant (specification, pages 2-4), the inclusion
of the relatively large grain size HSG layer improves gate
coupling, while the relatively small grain size of the
polysilicon layer establishes a relatively flat surface interface
with the tunnel oxide layer.
Claim 9 is illustrative of the invention and reads as
follows:
9. A flash memory wafer, comprising:
a core memory region including at least one silicon
substrate; and
plural stacks in the core memory region, each stack
having at least one respective polysilicon layer on a tunnel
oxide layer and at least one HSG layer above the polysilicon
[sic, layer] each stack also having at least one sidewall
layer, the HSG layer overlapping and contacting the sidewall
layer.1

The Examiner relies on the following prior art:
Esquivel et al. (Esquivel) 4,855,800 Aug. 08, 1989
Yew et al. (Yew) 5,753,559 May 19, 1998
(filed Oct. 09, 1996)
Lim 5,879,989 Mar. 09, 1999
(filed Jan. 03, 1997)
Appeal No. 2001-0836
Application No. 08/991,448
2 The Appeal Brief was filed May 19, 2000 (Paper No. 15). In response
to the Examiner’s Answer dated August 1, 2000 (Paper No. 16), a Reply Brief
was filed August 22, 2000 (Paper No. 17), which was acknowledged and entered
by the Examiner in the communication dated September 6, 2000 (Paper No. 18).
3
Claims 9, 11-14, and 23 stand finally rejected under
35 U.S.C. § 103(a). As evidence of obviousness, the Examiner
offers Yew in view of Lim with respect to claims 9, 14, and 23,
and adds Esquivel to the basic combination with respect to claims
11-13.
Rather than reiterate the arguments of Appellant and the
Examiner, reference is made to the Briefs2 and Answer for the
respective details.
OPINION
We have carefully considered the subject matter on appeal,
the rejection advanced by the Examiner and the evidence of
obviousness relied upon by the Examiner as support for the
rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, Appellant’s arguments
set forth in the Briefs along with the Examiner’s rationale in
support of the rejections and arguments in rebuttal set forth in
the Examiner’s Answer.
It is our view, after consideration of the record before us,
that the evidence relied upon and the level of skill in the
Appeal No. 2001-0836
Application No. 08/991,448
4
particular art would not have suggested to one of ordinary skill
in the art the obviousness of the invention as recited in claims
9, 11-14, and 23. Accordingly, we reverse.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the Examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine, 837
F.2d 1071, 1073-74, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the Examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
having ordinary skill in the pertinent art would have been led to
modify the prior art or to combine prior art references to arrive
at the claimed invention. Such reason must stem from some
teaching, suggestion or implication in the prior art as a whole
or knowledge generally available to one having ordinary skill in
the art. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044,
1051, 5 USPQ2d 1434, 1438 (Fed. Cir.), cert. denied, 488 U.S. 825
(1988); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc.,
776 F.2d 281, 293, 227 USPQ 657, 664 (Fed. Cir. 1985), cert.
denied, 475 U.S. 1017 (1986); ACS Hosp. Sys., Inc. v.
Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed.
Cir. 1984). These showings by the Examiner are an essential part
Appeal No. 2001-0836
Application No. 08/991,448
5
of complying with the burden of presenting a prima facie case of
obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
With respect to the obviousness rejection of independent
claims 9 and 23 based on the combination of Yew and Lim,
Appellant asserts the Examiner’s failure to establish a prima
facie case of obviousness since all of the claim limitations are
not taught or suggested by the applied prior art references. In
particular, Appellant contends (Brief, pages 4 and 5; Reply
Brief, page 2) that the structure resulting from the Examiner’s
proposed combination would not have an HSG layer in contact with
a sidewall spacer layer as required by each of independent claims
9 and 23.
After careful review of the applied Yew and Lim references,
we are in general agreement with Appellant’s position as stated
in the Briefs. In our view, if Yew and Lim were combined in
accordance with the collective teachings of the references, the
polysilicon layer 1 would lie between the HSG layer and the
sidewall spacer, i.e., there would be no contact between the HSG
layer and the sidewall spacer as claimed.
We recognize that, in attempting to address the language of
appealed claims 9 and 23, the Examiner has suggested (Answer,
Appeal No. 2001-0836
Application No. 08/991,448
6
page 3) that a HSG layer subsequently deposited after formation
of the floating gate 15 in Lin would necessarily contact the
sidewall spacers 13. It is our opinion, however, that the
Examiner has drawn this conclusion based on the unwarranted and
unsupported assumption that such HSG layer would cover the same
surface of the floating gate as the existing dielectric layer
illustrated in Lim’s Figure 3D. In order for us to sustain the
Examiner’s rejection under 35 U.S.C. § 103, we would need to
resort to impermissible speculation or unfounded assumptions or
rationales to supply deficiencies in the factual basis of the
rejection before us. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968), reh’g
denied, 390 U.S. 1000 (1968).
We have also reviewed the Esquivel reference added to the
proposed combination of Yew and Lim by the Examiner to address
the isolation trench features of dependent claims 11-13. We find
nothing in the disclosure of Esquivel, however, which would
overcome the innate deficiencies of Yew and Lim discussed supra.
In view of the above discussion, it is our view that, since
all of the limitations of the appealed claims are not taught or
suggested by the applied prior art references, the Examiner has
Appeal No. 2001-0836
Application No. 08/991,448
7
not established a prima facie case of obviousness. Accordingly,
the 35 U.S.C. § 103(a) rejection of independent claim 9 and its
dependent claims 11-14, as well as independent claim 23, is not
sustained.
In conclusion, we have not sustained the Examiner’s
35 U.S.C. § 103(a) rejection of any of the claims on appeal.
Therefore, the decision of the Examiner rejecting claims 9,
11-14, and 23 is reversed.
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LEE E. BARRETT ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
JOSEPH F. RUGGIERO )
Administrative Patent Judge )
JFR:hh
Appeal No. 2001-0836
Application No. 08/991,448
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