Ex Parte Dietrich et al

Patent Trial and Appeal Board

Apr 25, 2016

12923389 (P.T.A.B. Apr. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/923,389 09/17/2010
23117 7590 04/27/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Anton Dietrich
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
JAR-3691-2044 1142
EXAMINER
BAND, MICHAEL A
ART UNIT PAPER NUMBER
1754
NOTIFICATION DATE DELIVERY MODE
04/27/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTON DIETRICH, KEVIN O'CONNOR, and
RICHARD BLACKER
Appeal2014-008668
Application 12/923,389
Technology Center 1700
Before GEORGE C. BEST, JULIA HEANEY, and A VEL YN M. ROSS,
Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1-10 and 14-20. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
1 In our opinion below, we refer to the Final Office Action appealed from,
filed August 8, 2013 (Final Act.), the Appeal Brief filed February 10, 2014
(Appeal Br.), the Examiner's Answer filed May 9, 2014 (Ans.), and the
Reply Brief filed July 9, 2014 (Reply Br.).
2 Appellant identifies the real parties in interest as Guardian Industries Corp.
and Centre Luxembourgeois de Recherches pour le V erre et la Ceramique
S.A. Appeal Br. 3.
Appeal2014-008668
Application 12/923,389
STATEMENT OF CASE
The claims are directed to method of co-sputtering alloys and
compounds using a dual C-MAG cathode. The objective of the claimed
method is to result in a "true mixture of materials." Spec. i-f 3. Claim 1 is
illustrative of the claimed subject matter and is reproduced below with the
disputed language emphasized:
1. A method of making a coated article comprising a film
supported by a substrate, the method comprising:
having first and second rotating cylindrical sputtering
targets, the first sputtering target comprising a first sputtering
material and the second sputtering target comprising a second
sputtering material,
sputtering the first and second sputtering targets, and
wherein at least one magnet bar of the second sputtering target is
oriented so that during the sputtering of the second target second
sputtering material from the second target is sputtered onto the
first target, and during the sputtering of the first target the first
sputtering material of the first target and second sputtering
material which was sputtered onto the first target from the second
target is sputter-deposited onto a substrate to form the film, and
wherein a first magnetic field strength is provided for the
first target and a second magnetic field strength is provided for
the second target, wherein the first and second magnetic field
strengths are different, and wherein the second magnetic field
strength for the second target is stronger than the jzrst magnetic
field strength for the first target.
Claims Appendix at Appeal Br. 1 7 (emphasis added).
2
Appeal2014-008668
Application 12/923,389
REJECTIONS
The Examiner made the following rejections:
A. Claims 1-9 and 14--20 stand rejected under 35 U.S.C
§ 103(a) as unpatentable over Lampkin3, as evidenced by
De Bosscher. 4 Final Act. 2.
B. Claim 10 stands rejected under 35 U.S.C § 103(a) as
unpatentable over Lampkin as applied to claim 1 and
further in view of Lampkin (US 2002/0092766 Al). 5 Id.
at 5.
Appellants argue claims 1 and 16 together and provide no substantive
argument as to the separate patentability of claims 2-10, 14--15, and 17-20.
See Appeal Br. 8-15. We therefore focus our discussion on the rejection of
claim 1 as unpatentable over Lampkin and De Bosscher (Rejection A) to
resolve the issues on appeal.
OPINION
The Examiner rejects claim l as unpatentable over the combination of
Lampkin and De Bosscher. Final Act. 5. Appellants argue that the
combination does not render claim 1 obvious because neither reference
teaches that the magnetic field strength of the second target is stronger than
the first target. Appeal Br. 9. Furthermore, Appellants argue that even if the
combination of Lampkin and De Bosscher describes or suggests each
3 Lampkin, US 5,405,517, issued April 11, 1995 (hereinafter "Lampkin").
4 De Bosscher et al., US 6,375,814 Bl, issued April 23, 2002 (hereinafter
"De Bosscher").
5 Lampkin, US 2002/0092766 Al, published July 18, 2002 (hereinafter
"Lampkin '7 66").
3
Appeal2014-008668
Application 12/923,389
limitation in claim 1, there is no motivation to combine Lampkin and De
Bosscher.
Therefore, the first issue on appeal is whether the Examiner reversibly
erred in concluding that the combined teachings of Lampkin and De
Bosscher would render obvious, to those of ordinary skill in the art,
Appellants' claimed method of co-sputtering alloys "wherein the first and
second magnetic field strengths are different, and wherein the second
magnetic field strength for the second target is stronger than the first
magnetic field strength for the first target." Appellants do not persuade us of
reversible error.
The Examiner finds that Lampkin discloses all elements of the
claimed method except that "Lampkin does not specify particular strengths
for the first and second magnetic fields .... " Final Act. 2-3. But, the
Examiner finds that a person skilled in the art would have found it obvious
to have a stronger magnetic field strength for the second target than the first
target. According to the Examiner, an increase in the magnetic field strength
of the second target will
trap an increased amount of plasma against the second target,
which results in increased plasma particles dislodging (i.e.
sputtering) the target particles of the second target (as evidenced
by De Bosscher et al., col. 2, lines 38-39), thereby increasing
sputtering speed (i.e. rate) with which material from the second
target deposits onto the first target, which therefore ensures that
the first target constantly has second target material, thereby
maintaining the desired compound film on the substrate.
Id. at 3.
Appellants disagree and argue that "Lampkin does not disclose
differences in magnetic fields between the first target and the second target."
4
Appeal2014-008668
Application 12/923,389
Appeal Br. 9. Appellants also contend that De Bosscher does not correct
this deficiency because "De Bosscher does not teach or suggest having
different magnetic field strengths for different targets." Id. at 15.
The test for obviousness is not whether the claimed invention is
expressly suggested in any one or all of the references, but whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of those references. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981). "[A] court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ." See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
We agree with the Examiner and similarly find that De Bosscher
teaches "increasing the magnetic field increases the plasma density and
hence, the target erosion." De Bosscher, col. 2, 11. 38-39; Final Act. 3; Ans.
3. Moreover, we further find that De Bosscher expressly teaches "[ c ]ontrol
may be obtained ... by changing the strength of the magnetic field lines
(using magnets with different magnetisation or at different distances from
the target)." Id. at col. 1, 11. 52-57 (emphasis added). Neither Lampkin nor
De Bosscher specifically teach the second target having a magnetic field
strength greater than the first, but we find that the skilled artisan at the time
would have understood from De Bosscher that applying a greater magnetic
field strength to one target magnet results in an increased sputter rate for that
target-whether it is applied to the first target or the second target. See id.
col. 2, 11. 38-39. Therefore, we determine that a preponderance of the
evidence supports the Examiner's conclusion obviousness.
The second issue on appeal is whether Appellants have identified
reversible error in the Examiner's finding of a reason to combine Lampkin
5
Appeal2014-008668
Application 12/923,389
and De Bosscher. Appellants proffer several arguments, none of which
persuade us the Examiner committed reversible error.
Here, we find that Lampkin and De Bosscher-like the present
invention-teach a magnetron sputter process to deposit thin films onto a
substrate using cylindrical cathodes. See e.g., Lampkin, col. 4, 11. 19-41 and
Figures 1--4; De Bosscher, col. 1, 11. 5-14. Similarly, each of Lampkin and
De Bosscher-again, like the instant invention---disclose improving
uniformity of the film deposited onto the substrate. See e.g., Lampkin,
col. 6, 11. 62---65; De Bosscher, col. 2, 11. 55-67. Lampkin teaches that
uniformity may be achieved through "using a plenum 16 for vapor
premixing we can condense material vapors 8 and 8' onto primary cathode
surface 19 in a uniform mixed coating," "us[ing] an alternating power cycle
applied to primary rotating magnetron 18," or "us[ing] an open narrow
plasma sputter zone 26P which may require use of electron gun 23 for
thermionic support of plasma zone 26P." Lampkin, col. 8, 11.17-26. And,
De Bosscher describes known methods of achieving uniformity to include,
inter alia, "placing additional wedge shaped shields (introducing another
source of contaminating particle generation) or by changing the strength of
the magnetic field lines (using magnets with different magnetisation or at
different distances from the target)." De Bosscher, col. 1, 11. 50-57.
From these teachings, the Examiner finds "Lampkin implicitly is
teaching that it is essential that there must be a constant amount of In
material from the second target [32] present on the first target [19] in order
for the first target [ 19] to sputter the Cu-In-Se-alloy onto the substrate [ 48]."
Ans. 2. And, a person skilled in the art would understand that "modifying
the second magnetic field strength of Lampkin with common knowledge of
6
Appeal2014-008668
Application 12/923,389
De Bosscher et al teaching the correlation of increased (i.e. stronger)
magnetic field strengths to increase sputter rates, ensuring that an amount of
In material from the second target is constantly present on the first target."
Ans. 4.
Appellants begin by arguing there is no "credible rationale for
introducing these alleged teachings from De Bosscher into Lampkin"
because De Bosscher does not teach using different magnetic field strengths.
Appeal Br. 10, 12 and 15. As discussed above, we disagree. De Bosscher,
considers know techniques of achieving uniform coatings, "by changing the
strength of the magnetic field lines (using magnets with different
magnetization . .. )." De Bosscher, col. 1, 11. 50-57 (emphasis added).
Next, Appellants argue that because Lampkin already teaches a
solution to sputtering materials with different deposition rates, "[ t ]here is no
logical reason to look to another reference to solve a problem that Lampkin
already discussed and solved." Appeal Br. 11. But, "any need or problem
known in the field of endeavor at the time of the invention and addressed by
the patent can provide a reason for combining the elements in the manner
claimed." KSR, 550 U.S. at 420. We therefore find Appellants' argument
unpersuasive.
Appellants also contend that "Lampkin teaches away from this
because Fig. 1 of Lampkin suggests that all three magnetic strengths are the
same because the plasma sputter zones 22A, 22P, and 22A' are all shaped
the same and are all essentially the same size." Appeal Br. 14. To teach
away, a reference must discourage one of ordinary skill in the art from
following the path set out in the reference, or lead that person in a direction
divergent from the path taken by the applicant. In re Gurley, 27 F.3d 551,
7
Appeal2014-008668
Application 12/923,389
553 (Fed. Cir. 1994). That Lampkin may disclose similar magnetic field
strengths in each of the targets does not "teach away" or discourage, through
mere silence, the skilled artisan from utilizing different magnetic field
strengths.
Lastly, Appellants contend that the "implicit problem" identified in
Lampkin as support for the Examiner's combination-that is, it is important
to have a continuous amount of material from the second target on the first
target-would not have been understood by those skilled in the art at the
time of the invention. Appeal Br. 14; Reply Br. 3. Appellants explain
"there is no scientific or technical reasoning to support the [Examiner's] bare
assertion that 'if equal sputter rates are present due to equal magnetic field
strengths, the risk is present that the first target does not always have
sufficient In material from the second target to form the compound
material."' Appeal Br. 13.
Again, we disagree. Appellants explain that "Lampkin depicts equal
sputter zone shapes and sizes .... [I]t would be reasonable to view these
same sizes and shapes as at least suggesting to those skilled in the art that
equal sputter zone shapes should be used in solving the overall problem of
different sputter rates." Id. at 13-14. But, Lampkin discusses problems that
arise from this arrangement when the layering of target materials on the
primary cathode results in non-uniformity of the deposited material on the
substrate. In reference to Figure 4, Lampkin states that "each layer seems to
come from a different location [on] the cathode surface. The closer a
'source' is to an area of the substrate the richer in that source's material the
deposited film will be at that point." Lampkin, col. 6, 11. 57---61. Moreover,
we find adequate reason to combine Lampkin and Bosscher, based on the
8
Appeal2014-008668
Application 12/923,389
field of endeavor as well as the nature of the problem to be solved by the
references as discussed above.
We note also that Appellants, for the first time in their Reply Brief,
argue that "De Bosscher, in fact, teaches away from increasing the magnetic
field and discusses problems of using such procedures in its 'Technical
Background' section." Reply Br. 5. Appellants have not explained, nor is it
apparent, that these arguments were necessitated by the Examiner's Answer
or could not have been presented in the principal brief. These arguments are
untimely and we will not reach arguments presented for the first time in a
reply brief in the absence of good cause. 37 C.F .R. § 41.41 (b )(2).
We find the Examiner provided adequate reasons to combine
Lampkin and De Bosscher. And therefore, we find no reversible error in the
Examiner's rejections.
CONCLUSION
The Examiner did not reversibly err in rejecting claims 1-10 and 14--
20 as unpatentable in view of the prior art.
DECISION
For the above reasons, the Examiner's rejection of claims 1-10 and
14--20 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv) (2009).
AFFIRMED
9