Ex Parte Shul et al

Board of Patent Appeals and Interferences

May 10, 2006

10165356 (B.P.A.I. May. 10, 2006)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE

________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte RANDY J. SHUL, CHRISTI G. WILLISON,
W. KENT SCHUBERT, RONALD P. MANGINELL,
MARY-ANNE MITCHELL, and PAUL C. GALAMBOS
________________

Appeal No. 2006-1268
Application No. 10/165,356
________________

ON BRIEF
________________

Before KIMLIN, GARRIS, and FRANKLIN, Administrative Patent
Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 6-9,
11 and 12. Claim 6 is illustrative:
6. A method for fabrication of silicon-based microstructures,
comprising the deposition and patterning of an etching delay
layer, and further comprising an etching process, the thickness
and location of said etching delay layer being chosen to
compensate for aspect-ratio-dependent etching effects.

Appeal No. 2006-1268
Application No. 10/165,356

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In the rejection of the appealed claims, the examiner
relies upon the following references:
Zhang et al. (Zhang) 6,291,357 B1 Sep. 18, 2001
Yasuda et al. (Yasuda) 6,703,132 B1 Mar. 9, 2004
filed Dec. 22, 1999)

Appellants’ claimed invention is directed to a method for
fabricating a silicon-based microstructure. The process
involves the deposition and patterning of an etching delay layer
which retards the etching of large areas of a substrate relative
to narrower areas. It is known in the art that “[b]oth wet and
dry etching procedures exhibit an effect called aspect-ratio-
dependent etching, in which a narrow feature being defined by
etching deepens less rapidly than does a wide feature being
defined under the same etching conditions” (page 4 of
specification, second paragraph).
Appealed claims 6-9 and 11 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Zhang. Claim 12 stands
rejected under 35 U.S.C. § 103(a) as being unpatentable over
Zhang in view of Yasuda.
We have thoroughly reviewed the respective positions
advanced by appellants and the examiner. In so doing, it is our
determination that the examiner’s rejections are not well-
founded.
Appeal No. 2006-1268
Application No. 10/165,356

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We consider first the examiner’s § 102 rejection. It is
fundamental that a reference cited in a § 102 rejection must
describe every feature of the claimed invention. In the present
case, the claimed method requires a deposition and patterning of
an etching delay layer. Zhang, on the other hand, fails to
provide any description of patterning the etching delay, or
passivating, layer. While the examiner cites column 3, lines
14-25 of Zhang for the position that “Zhang clearly teaches the
patterning of the etch delay layer” (page 5 of Answer, first
paragraph), the referenced portion of Zhang pertains to an
overlying pattern of etch-resistant features 24, which are not
part of the etching delay layer. The examiner goes on to say
that “Zhang clearly teaches to pattern the etch-passivating
layer indirectly through the etch resistance feature by
selectively depositing the etch passivation layer in the
openings create [sic, created] by using photoresist mask (24) as
a template for patterning step” (page 5 of Answer, second
paragraph). However, there is no disclosure in Zhang that
teaches such a selective deposition, and the examiner has
pointed to none. Like appellants, we find that the more
reasonable interpretation of the reference is that the
passivation layer is formed by a blanket deposition.
Appeal No. 2006-1268
Application No. 10/165,356

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Yasuda, cited by the examiner for the separate § 103
rejection of dependent claim 12, does not remedy the basic
deficiency of Zhang discussed above.
In conclusion, based on the foregoing, we are constrained
to reverse the examiner’s rejections.
REVERSED

EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
)
BRADLEY R. GARRIS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
BEVERLY A. FRANKLIN )
Administrative Patent Judge )

ECK:clm

Appeal No. 2006-1268
Application No. 10/165,356

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