Ex Parte FURUTA et al

Patent Trial and Appeal Board

Apr 29, 2016

12422183 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/422, 183 04/10/2009 GAKUFURUTA
44257 7590 05/03/2016
PATTERSON & SHERIDAN, LLP- - Applied Materials
24 Greenway Plaza, Suite 1600
HOUSTON, TX 77046
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.
013370/USAPOl/DISPLAY/AKT 6118
EXAMINER
LUND, JEFFRIE ROBERT
ART UNIT PAPER NUMBER
1716
NOTIFICATION DATE DELIVERY MODE
05/03/2016 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):
Pair_Eofficeaction@pattersonsheridan.com
psdocketing@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GAKU FURUTA, YOUNG-JIN CHOI, SOO YOUNG CHOI,
BEOM SOO PARK, JOHN M. WHITE, SUHAIL ANWAR, and
ROBIN L. TINER
Appeal2014-005881
Application 12/422, 183
Technology Center 1700
Before CHUNG K. PAK, KAREN M. HASTINGS, and
JAMES C. HOUSEL, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's
rejections of claims 1--4, 6-12, and 21-25. We have jurisdiction over the
appeal pursuant to 35 U.S.C. § 6(b).
Claims 1 and 9 are illustrative (emphasis added):
Claim 1. A plasma processing apparatus, comprising:
a processing chamber having a gas distribution showerhead and a
generally rectangularly shaped backing plate;
one or more power sources coupled to the backing plate at one or
more first locations;
1 The Real Party in Interest is stated to be "Applied Materials, Inc." (App.
Br. 3).
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Application 12/422, 183
one or more gas sources coupled to the backing plate at three other
locations that are each separate from the one or more first locations wherein
one of the three locations is disposed at a second location substantially equal
distance between two parallel sides of the backing plate;
one or more remote plasma sources coupled to the one or more gas
sources;
one or more gas feed blocks coupled to the backing plate at the three
other locations;
one or more cooling blocks coupled between the one or more remote
plasma sources and the gas feed blocks; and
one or more RF chokes coupled to one or more cooling blocks.
Claim 9. A plasma enhanced chemical vapor deposition apparatus,
compnsmg:
a processing chamber having a slit valve opening through at least one
wall;
a gas distribution showerhead disposed within the processing chamber
and spaced from a substrate support;
a backing plate disposed behind the gas distribution showerhead and
spaced therefrom, the backing plate having three openings therethrough at
three locations, \'I/herein one location of the three locations is disposed
farther from the slit valve opening than the other two locations;
one or more gas sources coupled to the backing plate at the three
locations;
one or more RF power source coupled to the backing plate at locations
spaced from the three locations;
one or more remote plasma sources coupled to the backing plate at
each of the three locations;
one or more gas feed blocks coupled to the backing plate at the three
locations;
one or more cooling blocks coupled between the one or more remote
plasma sources and the gas feed blocks; and
one or more RF chokes coupled to one or more cooling blocks.
The rejections maintained on appeal for independent claim 1 rely
upon Sun et al. (U.S. Pub. No. 2002/0174885 Al, published Nov. 28, 2002)
2
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Application 12/422, 183
("Sun"), White et al. (U.S. Pub. No. 2005/0183827 Al, published Aug. 25,
2005) ("White"), Kobayashi et al. (U.S. Pub. No. 2006/0016559 Al,
published Jan. 26, 2006) ("Kobayashi"), Jucha et al. (U.S. Pat. No.
4,988,644, issued Jan. 29, 1991) ("Jucha") and Sorensen (U.S. Pub. No.
2007 /0051388 Al, published Mar. 8, 2007) as evidence of obviousness
under 35 U.S.C. § 103(a); for independent claim 9 all of these same
references are applied2 additionally with Carducci et al. (U.S. Pub. No.
2005/0003675 Al, published Jan. 6, 2005) ("Carducci"). 3 (See Ans. 2--44
for a full listing of the rejections on appeal).
Upon consideration of the evidence on this record and each of
Appellants' contentions, we determine that the preponderance of evidence
on this record supports the Examiner's conclusion that the subject matter of
Appellants' independent claims 1 and 9 (each directed to plasma processing
2 The Examiner includes White in the rejection of claim 9 (Ans. 13);
however, it appears that White is only relied upon to teach the feature of a
rectangular backing plate-which is not recited in claim 9 (Claims App.).
3 The Examiner applies the additional prior art of Paterson et al. (U.S. Pub.
No. 2005/0241762 Al, published Nov. 3, 2005) ("Paterson") to claim 3; and
Wajda et al. (U.S. Pub. No. 2007/0066084 Al, published Mar. 22, 2007)
("Wajda") to a second rejection of claims 1--4, 6, and 21-24 (Ans. 21,
relying on Kobayshi as the primary reference) and claims 9-12 and 25 (Ans.
29, relying upon Kobayashi as the primary reference); and Carducci to
claims 7-9 and 25 (Ans. 27-29); and Carducci in further view of Amano et
al. (U.S. Pub. No. 2001/0006094 Al, published July 5, 2001) ("Amano") to
claims 10 and 12. Appellants rely upon the arguments for independent
claims 1 and 9 for all the claims dependent therefrom. It is noted that
combinations of almost the same prior art has been rearranged for an
alternative rejection of claims 1 and 9 using Kobayashi as the primary
reference, further relying upon Wajda (Ans. 21-34), versus using Sun as the
primary reference (Ans. 2-21 ),
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Application 12/422, 183
apparatus) are unpatentable over the applied prior art. 4 We adopt the
Examiner's findings of fact (Ans. 2--44), the preponderance of which
support the conclusion of law articulated by the Examiner in each
obviousness rejection.
In assessing whether a claim to a combination of prior art elements
would have been obvious, the question to be asked is whether the
improvement of the claim is more than the predictable use of prior art
elements or steps according to their established functions. KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007). "[T]he analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." Id. at 418.
The§ 103 Rejections based on Sun
Appellants' do not dispute the Examiner's factual findings with
respect to the applied references in this rejection. Rather, 1A .. ppellants' only
argument with respect to independent claim 1 (which recites a generally
rectangular backing plate) is that there is "no reasonable expectation of
success" in modifying the plasma processing apparatus of Sun to have a
rectangular backing plate as exemplified in White (App. Br. 8) and that this
modification would "incur additional expenses" (Reply Br. 2). Appellants'
4 Appellants only present arguments directed to the features of independent
claims 1 and 9 (App. Br. 8-21 ). To the extent that combinations of almost
the same prior art has been rearranged for an alternative rejection of claims 1
and 9 using Kobayashi as the primary reference and further relying upon
Wajda (Ans. 21-34) versus using Sun as the primary reference (Ans. 2-21),
a preponderance of the evidence supports all of the Examiner's rejections
(App. Br. 8-21; Ans. 2--44; Reply Br. 2--4).
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Application 12/422, 183
main argument with respect to independent claim 9 (which recites a backing
plate having three openings) is that there is no motivation in modifying the
apparatus of Sun/White to have three gas inlets as exemplified in Kobayashi
as this "would unnecessarily increase costs and efforts" and Sun/White "is
already capable of uniformly distributing gasses" (App. Br. 14; Reply Br. 2).
These arguments fail to adequately consider the prior art as a whole, and do
not adequately address the Examiner's obviousness position (generally
Ans.). See In re Keller, 642 F.2d 413, 425-26 (CCPA 1981) ("The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference .... Rather,
the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art."); see also e.g., In re Fritch,
972 F.2d 1260, 1264--65 (Fed. Cir. 1992) (it is well established that in
evaluating references it is proper to take into account not only the specific
teachings of the references but also the inferences \'l1hich one skilled in the
art would reasonably be expected to draw therefrom).
As aptly pointed out by the Examiner, Sun does not specify the shape
of its backing plate, and White teaches that both circular and rectangular
plates are useful (e.g., Ans. 35, 36). The Examiner also points out that Sun
does not exclude multiple gas inlets, and Kobayashi discloses advantages of
multiple gas inlets (e.g., Ans. 38). Appellants have not asserted that the
proposed modification of Sun to include a rectangular backing plate as
exemplified in White (or to include three gas inlets as exemplified in
Kobayashi for independent claim 9) would have been beyond the
capabilities of a person of ordinary skill in the art. Absent such assertion or
adequate evidence, we "take account of the inferences and creative steps that
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a person of ordinary skill in the art would employ," and find a person of
ordinary skill in the art would have overcome those difficulties within their
level of skill. KSR, 550 U.S. at 418; see also id. at 421 ("A person of
ordinary skill is also a person of ordinary creativity, not an automaton.");
Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d
984, 993 (Fed. Cir. 2009) (under the flexible inquiry set forth by the
Supreme Court, the PTO must take account of the "inferences and creative
steps," as well as routine steps, that an ordinary artisan would employ
(emphasis omitted)); In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (one
of ordinary skill is presumed to be skillful; an argument that "presumes
stupidity rather than skill" is not persuasive).
Furthermore, Appellants' unsupported conclusion that the chamber of
Sun would be "unrecognizable" if the backing plate was rectangular (Reply
Br. 2) falls short of showing harmful error. An attorney's arguments in a
brief cannot take the place of evidence. Jn re Pearson, 494 F.2d 1399, 1405
(CCPA 1974).
Accordingly, Appellants have not provided persuasive technical
rationale or any credible evidence to refute the Examiner's determination it
would have been obvious to use a rectangular backing plate (as required by
independent claim 1 ), as exemplified to be a known practice in White's
substrate processing apparatus, in the plasma processing device of Sun and
that it also would have been obvious to use multiple (three) gas inlets (as
required by independent claim 9) as exemplified in Kobayashi to be known
for improved gas distribution uniformity (generally Ans.; App. Br.). KSR,
550 U.S. at 416 (the predictable use of prior art elements according to
known methods for their established functions is likely to be obvious when it
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Application 12/422, 183
does no more than yield predictable results). "A person of ordinary skill is
also a person of ordinary creativity, not an automaton." Id. at 421.
In assessing whether a claim to a combination of prior art elements
would have been obvious, the fact that a combination may increase costs
does not necessarily mean that a person of ordinary skill in the art would not
have made the combination for the known benefits of additional gas inlets to
increase gas distribution uniformity. See Orthopedic Equipment Co. et al. v.
United States, 702 F.2d 1005, 1013 (1983) ("the fact that the two disclosed
apparatus would not be combined by businessmen for economic reasons is
not the same as saying that it could not be done because skilled persons in
the art felt that there was some technological incompatibility that prevented
their combination. Only the latter fact is telling on the issue of
nonobviousness."). See also In re Farrenkopf, 713 F.2d 714, 718 (Fed. Cir.
1983) ("additional expense associated with the addition of inhibitors would
not discourage one of ordinary skill in the art").
Appellants' argument that it "would be unnecessary" to include
additional hardware of Kobayashi in Sun due to the fact that it would
unnecessarily increase costs and efforts since Sun already is capable of
uniformly distributing gasses (Reply Br. 2-3) is unpersuasive. The
Kobayashi reference teaches multiple gas inlets (see Ans. 40). These gas
inlets allow for added control of plasma within the processing chamber. It is
the improved plasma control that motivates one to combine the references.
To the extent that combinations of the same prior art, but further
relying upon Wajda, has been rearranged using Kobayashi as the primary
reference for an alternative§ 103 rejection of claims 1and9 (Ans. 21-34)
(versus using Sun as the primary reference (Ans. 2-21 )), a preponderance of
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the evidence supports all of the Examiner's rejections (App. Br. 8-21; Ans.
2--44; Reply Br. 2--4).
The decision of the Examiner 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).
AFFIRMED
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