Ex Parte Allen et al

Patent Trial and Appeal BoardMar 18, 2014

12062186 (P.T.A.B. Mar. 18, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/062,186 04/03/2008 Scott D. Allen YOR920030175US3 9838 48062 7590 03/18/2014 RYAN, MASON & LEWIS, LLP 1175 Post Road East 2nd Floor Westport, CT 06880 EXAMINER NGUYEN, CUONG QUANG ART UNIT PAPER NUMBER 2811 MAIL DATE DELIVERY MODE 03/18/2014 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte SCOTT D. ALLEN, KATHERINA E. BABICH, STEVEN J. HOLMES, ARPAN P. MAHOROWALA, DIRK PFEIFFER, and RICHARD STEPHAN WISE ____________________ Appeal 2012-001087 Application 12/062,186 Technology Center 2800 ____________________ Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and JAMES C. HOUSEL, Administrative Patent Judges. TIMM, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appellants seek review of the Examiner’s decision to reject claims 1-3 and 8-16 under 35 U.S.C. § 112, ¶ 2 as indefinite and claims 1-3, 8-11, and 14-16 under 35 U.S.C. § 102 as anticipated. We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a). We AFFIRM. The claims are directed to a lithographic structure (see, e.g., Claim 1). Appeal 2012-001087 Application 12/062,186 2 The Specification describes a lithographic structure (semiconductor device 200 illustrated in Figure 2), containing a radiation sensitive imaging layer (202) deposited on an antireflective layer (204) over a substrate (206), which is deposited on a nitride layer 208 (Spec. 5). A feature is etched into the lithographic structure as shown in Figure 2. Figure 2 is reproduced below: Diagram illustrating successive cross-sections of a semiconductor device 200 as a feature 210 is formed in steps 212, 214, and 216 Feature 210 may comprise, for instance, a contact hole, via pattern, line, space, oval, and combinations thereof (Spec. 5). The feature 210 has a critical dimension, which the Specification defines as “the characteristic dimensions of the feature attained by the technology employed” (Spec. 4). The Specification states that when the feature is a contact hole, the critical dimensions may represent a measure of the diameter of the contact hole produced (id.). Appeal 2012-001087 Application 12/062,186 3 In the process shown in Figure 2, the lithographic structure (semiconductor 200) is etched to form a contact hole (Spec. 6). In step 212, the critical dimensions, i.e., the diameter, of the contact hole patterned within the radiation sensitive imaging layer 202 may or may not change (Spec. 5). Figure 2 depicts an unchanged diameter for the contact hole 210 formed in the radiation sensitive imaging layer 202. In step 214, the diameter changes as etching progresses through the anti-reflective layer 204 (Spec. 7). The change in diameter is referred to as a reduction in diameter or taper or choking of feature 210 (Spec. 8). In step 216, the diameter continues to decrease as the substrate 206 is etched such that the ultimate critical dimensions (diameter) at the bottom of the substrate layer 206 is reduced to the diameter depicted by the two-sided arrow designated ETCH as compared to the critical dimensions (diameter) at the top of the radiation sensitive imaging layer 202 depicted by the two-sided arrow designated LITHO (Fig. 2; Spec. 9). Claim 1 is not limited to a lithographic structure containing a radiation sensitive imaging layer or substrate. Claim 1 is directed to any lithographic structure containing an anti-reflective material having a feature with “at least one reduced critical dimension,” such as a contact hole with a reduced diameter (Claim 1; Spec. 4). Claim 1 reads as follows: 1. A lithographic structure, the lithographic structure comprising an antireflective material having a feature patterned therein, the feature having at least one reduced critical dimension wherein said at least one reduced critical dimension is smaller than a lithographically defined dimension of said lithographic structure. (Claims App’x at Br. 8.) Appeal 2012-001087 Application 12/062,186 4 OPINION The Examiner determines that the language “reduced critical dimension is smaller than a lithographically defined dimension of said lithographic structure” as recited in claim 1 is indefinite under 35 U.S.C. § 112, ¶ 2. We agree. The law requires that “[t]he specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” 35 U.S.C. § 112 ¶ 2. The purpose of the requirement is: [T]o provide those who would endeavor, in future enterprise, to approach the area circumscribed by the claims of a patent, with the adequate notice demanded by due process of law, so that they may more readily and accurately determine the boundaries of protection involved and evaluate the possibility of infringement and dominance. In re Hammack, 427 F.2d 1378, 1382 (CCPA 1970). 35 U.S.C. § 112, ¶ 2 “puts the burden of precise claim drafting squarely on the applicant.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997). “[D]uring patent prosecution when claims can be amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed.” In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). “Only in this way can uncertainties of claim scope be removed, as much as possible, during the administrative process.” Id. at 322. Claim 1 is directed to an article of manufacture, i.e., a product having some structure. The article of claim 1 need only include an anti-reflective material containing a feature having a critical dimension. Appeal 2012-001087 Application 12/062,186 5 Appellants attempt to define the critical dimension of the feature in terms of the dimension of an unknown entity, i.e., “a lithographically defined dimension.” There is no requirement that the structure of the claim contain any component with a lithographically defined dimension. Therefore, there is no basis for one of ordinary skill in the art to determine which of all the known or future structures containing features in anti- reflective material would infringe the claim. For example, if a competitor were manufacturing a semiconductor device with an anti-reflective layer containing a contact hole and that device did not contain a radiation sensitive imaging layer, there is no basis to determine if the contact hole has a reduced diameter smaller than a lithographically defined dimension. Moreover, even if claim 1 were interpreted as implicitly requiring a structure with a lithographically defined dimension, the claim would still fail to allow competitors to determine whether their products infringe. There is no link within claim 1 between the critical dimension of the feature within the anti-reflective material to any particular “lithographically defined dimension” that might be present in a semiconductor device. The “lithographically defined dimension” could be within a radiation sensitive imaging layer used to form some other features within the semiconductor device. Such an unrelated layer could have a myriad of dimensions such that the limitation on size in the claim becomes essentially meaningless. We emphasize that the claim is directed to a structure. As such, the claim must be differentiated from the prior art, and any potentially infringing devices, by structure. While claim 1 designates the structure a “lithographic structure,” the term “lithographic” refers to a method of forming the structure. In addition, phrases within the claim reciting that the feature is “patterned therein,” and defining the critical dimension as “smaller than a Appeal 2012-001087 Application 12/062,186 6 lithographically defined dimension,” as pointed out by the Examiner, also pertain to the process of forming the structure (Ans. 5-6). These process- based recitations only serve to limit the claim in so far as they limit the structure of the device. If another device, i.e., a prior art or potential infringing device, has an identical final structure as a device encompassed by the claim, whether or not the other device is made by a process involving lithography, the other device will meet the requirements of the claim. In re Nuijten, 500 F.3d 1346, 1356 (Fed. Cir. 2007) (A product, i.e., an “article of manufacture,” refers to a tangible article or commodity; some structure that exists in one point in time.); In re Brown, 459 F.2d 531, 535 (CCPA 1972) (“[I]t is the patentability of the product claimed and not of the recited process steps which must be established.”); and In re Hallman, 655 F.2d 212, 215 (CCPA 1981) (Process steps are to be given weight in a product claim only to the extent they distinguish the claimed product over the prior art product). The only affirmative structure required by the claim is an anti- reflective material containing a feature having a critical dimension. The claim attempts to limit the scope of the critical dimension relative to “a lithographically defined dimension” of unknown parameters. The claim mixes structural limitations and process limitations in a way that results in indefiniteness. We determine that a preponderance of the evidence supports the Examiner’s rejection of claim 1 as indefinite under the law. The Examiner further rejects claims 12 and 13 as indefinite. Claims 12 and 13 further recite that the critical dimensions of “any given feature” is reduced by up to a particular amount, either up to about 50 nanometers (Claim 12) or up to about 80 nanometers (Claim 13). Again, the reduction is Appeal 2012-001087 Application 12/062,186 7 relative to an unknown. Therefore, the claims do not reasonably apprise those in the art of the range of dimensions encompassed by the claims. The Examiner further rejects claims 1-3, 8-11, and 14-16 under 35 U.S.C. § 102 as anticipated (Ans. 3-5). We procedurally reverse these rejections without reaching their merits. Speculative assumptions would be required to determine the scope of the claims and to evaluate the 35 U.S.C. § 102 rejections. In such a situation, it is not appropriate to sustain a prior art rejection. See In re Steele, 305 F.2d 859, 862 (CCPA 1962) (reversed because § 103 rejection was based on considerable speculation as to meaning of terms of claims and assumptions as to their scope). CONCLUSION We sustain the rejection under 35 U.S.C. §112, ¶ 2 and procedurally reverse the rejections under 35 U.S.C. § 102 without reaching their merits. DECISION The Examiner’s decision is affirmed. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED bar