Takeaway: The Board affirmed a written description rejection by adopting the Examiner's claim construction, in which "height" of a layer was interpreted as a thickness. The Applicant's arguments against the written description rejection relied on a different interpretation.
Ex parte Jung
Appeal 2009-008540, Appl. No. 11/019,3151, Tech. Center 2800
January 8, 2011
The claims were directed to a method of semiconductor fabrication. The Examiner issued a written description rejection for this claim limitation:
forming a tunnel oxide layer on the active area of the semiconductor substrate such that a height of the tunnel oxide layer is not lower than a height of the trench isolation layer;In response, the Applicant relied solely on drawings rather than the specification to show possession. The Applicant argued that Figure 7 disclosed "a height of the tunnel layer  is not lower than a height of the trench isolation layer ."
In the next Office Action, the Examiner asserted that Figure 7 did not support the limitation at issue, and used an annotated Figure 7 to explain why:
According to the Examiner, Figure 7 showed the height of the tunnel oxide layer as being lower than the height of the trench isolation layer, which is the opposite of what was claimed.
The Applicant appealed, but the Appeal Brief did not address the Examiner's implicit interpretation of of "height".
In the Answer, the Examiner made his claim construction explicit, asserting that the plain meaning of "height" is "the distance from the base of something to the top."
The Board noted that the specification did not discuss relative heights of the layers, and did not define the term "height". The Board agreed with the Examiner's reading of Figure 7 and affirmed the written description rejection.
My two cents: Though the Board never referred to claim construction or broadest reasonable interpretation, it's pretty easy to figure out that a) the meaning of "height" is dispositive here and b) the Examiner was interpreting "height" of a layer to mean "thickness" of the layer, rather than the position of the layer relative to the bottom of the substrate (altitude?).
The Applicant should have either argued against this construction in the Appeal Brief. Or not even appealed in the first place. The last Office Action before the Notice of Appeal was non-final, so no RCE was necessary to make a clarifying amendment.
I haven't thought too much about it, but something like this?
heightposition of the tunnel oxide layer is not lower than a heightposition of the trench isolation layer, relative to the semiconductor substrate"