Ex Parte Irumata et al

Patent Trials and Appeals Board

Jun 11, 2018

12300173 - (D) (P.T.A.B. Jun. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/300, 173 11/10/2008 Shuichi Irumata
270 7590 06/13/2018
HOWSON & HOWSON LLP
350 Sentry Parkway
Building 620, Suite 210
Blue Bell, PA 19422
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.
OGOSHlOlUSA 6841
EXAMINER
KOSLOW, CAROL M
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
06/13/2018 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):
docketing@howsoniplaw.com
ckodroff@howsoniplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHUICHI IRUMATA and CHISAKA MIYATA
Appeal2017-007747
Application 12/300, 173
Technology Center 1700
Before DONNA M. PRAISS, WESLEY B. DERRICK, and
JULIA HEANEY, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-3, 5, 6, and 13-20. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
The subject matter of this appeal relates to a copper alloy wiring
sputtering target for semiconductor application capable of effectively
preventing contamination around the wiring caused by diffusion of active
1 In explaining our decision, we make reference to the Specification filed
Nov. 10, 2008 ("Spec."), the Final Office Action entered Mar. 24, 2016
("Final Act."), the Appeal Brief filed Sept. 22, 2016 ("Br."), and the
Examiner's Answer entered Jan. 31, 2017 ("Ans.").
Appeal2017-007747
Application 12/300, 173
copper, and more specifically, a copper manganese alloy sputtering target.
Spec. 1: 8-13. Claims 1 and 17 are illustrative ( disputed elements italicized
and paragraphing added):
1. A Cu-Mn alloy sputtering target, consisting of Cu,
Mn at a content of 0.05 to 20 wt%, impurities consisting of Be,
B, Mg, Al, Si, Ca, Ba, La, and Ce at a content in total of 1.5 to
500wtppm, gas components, and unavoidable impurities other
than Be, B, Mg, Al, Si, Ca, Ba, La, Ce and gas components,
wherein a (111) plane is formed within crystals on a
surface of the sputtering target, and
wherein the surface is characterized by an area ratio of
( 111) plane of 1 to 4, the area ratio of ( 111) plane being defined
by a ratio of an area fraction of ( 111) plane of the surface to an
area fraction of (111) plane infcc polycrystals which is
comprised of crystals having as a whole evenly distributed
orientations, the area fraction of ( 111) plane of the target
surface being obtained by observing the surface with a FESEM
(Field Emission Scanning Electron Microscope) equipped with
an EBSP (Electron Back Scatter Diffraction Pattern) analyzing
system.
17. A Cu-Mn alloy sputtering target made of a
composition including Cu, 0.05 to 20wt% Mn, a total amount of
Be, B, Mg, Al, Si, Ca, Ba, La, and Ce of 1.5 to 185wtppm, and
oxygen content of 20 to 40wtppm and having a surface with
crystals having closed-packed (111) planes and in which the
close-packed (111) planes are evenly distributed in all
directions.
Br. 26, 27-28 (Claims Appendix).
The Examiner maintains, and Appellants2 appeal, the following
rejections under 35 U.S.C. § 103(a):
2 Appellants identify the real party in interest as JX Nippon Mining &
Metals Corporation. Br. 2.
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Application 12/300, 173
1. Claims 1-3, 5, 6, and 13-20 over Koike 3 in view of Fujiwara4 and
further in view of Takajashi, 5 Michaluk, 6 or Wickersham; 7 and
2. Claims 1-3, 5, 6, and 13-20 over Michaluk or Wickersham in view
ofKoike and further in view of Fujiwara.
Ans. 2; Br. 5-24.
OPINION
The dispositive issues for this appeal are (1) whether the Examiner
erred in determining that the claims do not require either a particular
sputtering target structure or a particular impurity amount of La and (2)
whether the Examiner erred in finding that the (111) plane is shared by
copper and manganese, that a ( 111) texture is preferred for sputtering targets
made of copper or its alloys, and that primary ( 111) texture is expected to be
uniformly distributed in the sputtering target for uniform film thickness.
After review of the arguments and evidence presented by both
Appellants and the Examiner, we affirm the stated rejections.
Rejection 1
It is the Examiner's position that Koike in view of Fujiwara and
further in view of Takajashi, Michaluk, or Wickersham discloses the subject
matter of claims 1-3, 5, 6, and 13-20 for the reasons stated on pages 2--4 of
the Final Action and pages 3--4 of the Answer.
3 Koike et al., US 2005/0218519 Al, pub. Oct. 6, 2005 ("Koike").
4 S. Fujiwara et al., Ductility of Ultra High Purity Copper, 5 Journal de
Physique III C7-295 (Nov. 1995) ("Fujiwara").
5 Takahashi et al., US 6,451,135 Bl, iss. Sept. 17, 2002 ("Takahashi").
6 Michaluk et al., US 2004/0186810 Al, pub. Sept. 23, 2004 ("Michaluk").
7 Wickersham, Jr., US 2004/0256226 Al, pub. Dec. 23, 2004
("Wickersham").
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Application 12/300, 173
In the Appeal Brief, Appellants argue that neither Koike nor Fujiwara
disclose a sputtering target or any characteristics thereof. Br. 6-7.
According to Appellants, Koike discloses a Cu-Mn alloy thin film formed by
sputtering, but "may have been formed by co-sputtering separate Cu and Mn
sputtering targets" while the subject matter of Fujiwara is ultra-high purity
copper requiring a complicated refining process and is not a Cu-Mn alloy as
only trace amounts of Mn are disclosed. Id. Appellants further assert that
none of the cited references discloses the specific impurity elements in the
Cu-Mn alloy sputtering target required by the claim, and specifically La,
which Appellants assert is "a positively recited limitation with respect to
restricting La content to an extremely minute and trace amount." Id. at 8-9;
see id. at 14--15 (Appellants reiterate this argument with respect to
dependent claims 2, 3, 5, and 6, which require the impurities recited in claim
1 only or together with oxygen to have a certain content "or less," and
dependent claims 15 and 16, which require the impurities recited in claim 1
only or together with oxygen to have a certain content within the range
recited in claim 1 ).
Appellants also contend that the cited art does not disclose the (111)
plane to be uniformly distributed in all directions in a Cu-Mn alloy
sputtering target. Id. at 11; see id. at 16 (Appellants reiterate this argument
with respect to claim 17). According to Appellants, "[ w ]hile Takahashi et
al. may obtain film thickness uniformity by causing Cu to be strongly
oriented toward the (111) plane, the present invention obtains favorable film
uniformity by causing the Cu-Mn alloy to be within the area ratio as
claimed." Id. at 12. Regarding Michaluk and Wickersham, Appellants
contend that the references' teaching of"' a primary uniform ( 111) texture'
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Appeal2017-007747
Application 12/300, 173
... implies that the (111) plane is strongly oriented in the sputtering surface"
and "opposite to that required by the claims." Id. at 13.
The Examiner responds that Fujiwara is merely cited to show
conventional impurities in commercial Cu raw material, which would have
been present when making a Cu-Mn alloy. Ans. 7-8. Regarding Koike's
Cu-Mn alloy sputtering target, the Examiner responds that the claims do not
recite a particular structure, the form of reactants is merely a choice between
well-known forms of such substances, and Appellants do not argue that a
Cu-Mn alloy from a single Cu-Mn alloy sputtering target is not encompassed
by Koike's disclosure. Id. at 6-7. Regarding the degree of impurities, the
Examiner responds that no factual evidence shows that the ranges of
impurities are critical to the invention, that the different in degree of purity
itself does not predicate patentability, and that none of the appealed claims
positively recites the existence of La. Id. at 8-9. The impurity La is not
singled out among the other impurities as being present, therefore it may be
absent as Appellants note that any of the listed impurities may be absent. Id.
at 9 (citing Br. 9-10, 14--15).
Regarding a sputtering face inherently having a definable surface area
consisting of micro surfaces of a plurality of crystals, the Examiner finds
that Cu and Mn elements are known to be face center cubic (FCC) elements
and that a (111) close-packed plane is one of the characteristics of FCC
elements. Id. at 9-10. The Examiner also finds that both pure copper and a
Cu-Mn alloy have FCC crystalline orientation and that the plane orientation
of the sputtering target provides improvements in thickness uniformity and
sputtering rate as long as the elements/alloys have the same crystalline
orientation. Id. at 10-11 (citing Takahashi 3:66-4:8). The Examiner finds
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Application 12/300, 173
no evidence to support Appellants' position that sputtering rate based on
crystalline orientation will differ depending on the particular material, e.g.
between copper and a Cu-Mn alloy. Id. at 11. The Examiner further notes
that no evidence of criticality has been shown with respect to the recited
(111) plane area ratio, and that only two primary textures (111) or (100) are
disclosed by Michaluk and Wickersham, which the references teach "can be
on the surface or throughout the entire volume of the target. Ans. 11-13
(citing Michaluk ,r 23; Wickersham ,I 25).
The difficulty with Appellants' arguments distinguishing Koide based
on how the sputtering target is formed as well as the combination of
references for not disclosing the specified impurities and amount,
specifically of La, is that none of the asserted differences is recited in claim
1 in a manner that distinguishes the claimed subject matter from the cited
prior art. See Ans. 6, 8-9. Appellants do not direct us to any specific
structural limitation in the claims that is the result of sputtering Cu-Mn alloy
film versus separately co-sputtering Cu and Mn. Regarding the identity and
claimed range of impurities, Appellants concede that the recitation of
impurities in claim 1 does not require their presence, as one or more
impurity, such as La for example, may be absent. Br. 9; Ans. 9. Limitations
not appearing in the claims cannot be relied upon for patentability. In re
Self, 671 F.2d 1344, 1348 (CCPA 1982). As the Examiner notes, the degree
of purity alone does not establish patentability. Aventis Pharma
Deutsch/and GmbH v. Lupin, Ltd., 499 F.3d 1293, 1302 (Fed. Cir. 2007)
("Ordinarily, one expects a concentrated or purified ingredient to retain the
same properties it exhibited in a mixture, and for those properties to be
amplified when the ingredient is concentrated or purified."). Appellants do
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Application 12/300, 173
not direct us to any objective evidence of non-obviousness such as
unexpected results due to the claimed level of impurities.
Appellants' arguments distinguishing Fujiwara are not persuasive
because Appellants do not dispute the Examiner's finding (Ans. 7-8) that
conventional impurities in commercial Cu raw material, as disclosed by
Fujiwara, would have been inherited from the Cu raw material when making
Cu-Mn alloy.
We also are not persuaded by Appellants that the Examiner erred in
determining that the (111) plane required by claim 1 would have been
obvious over the cited prior art in view of the Examiner's findings (Final
Act. 7) that the (111) plane is shared by Cu and Mn and that Michaluk
establishes that a sputtering target made of copper or its alloys is preferred to
have ( 111) texture. These factual findings are not disputed by Appellants.
Appellants also do not dispute the Examiner's finding (Ans. 10) that Cu and
Mn are known face center cubic elements and that a (111) close-packed
plane is a characteristic of face center cubic elements. Nor do Appellants
dispute the Examiner's finding (Ans. 10) that Takahashi discloses that
intensified orientation in the (111) plane rather than wholly random
orientation produces better film thickness uniformity.
Appellants do not direct us to any evidence to support their position
(Br. 12) that the crystalline orientation of pure copper differs in any
meaningful manner from a Cu-Mn alloy and, thus, do not persuade us that
the Examiner's determination that an alloy of Cu and Mn, both known face
centered cubic elements, would not also reasonably be expected to provide
face centered cubic structure having a (111) close-packed plane. Regarding
Michaluk and Wickersham indicating that texture is not critical (Br. 13),
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Application 12/300, 173
Appellants do not dispute the Examiner's finding that the references disclose
only two primary textures ( 111) or ( 100) for use and that Appellants
likewise do not show criticality of the recited (111) plane area ratio.
Accordingly, based on the cited record on appeal, we are not
persuaded of reversible error in the Examiner's rejection of claim 1 over
Koike in view of Fujiwara and further in view of Takajashi, Michaluk, or
Wickersham.
Rejection 2
It is the Examiner's position that Michaluk or Wickersham in view of
Koike and further in view of Fujiwara disclose the subject matter of claims
1-3, 5, 6, and 13-20 for the reasons stated on pages 4--5 of the Final Action
and pages 4--6 of the Answer.
Appellants repeat the argument that Michaluk and Wickersham imply
that the ( 111) plane is strongly oriented toward the direction of the
sputtering surface and opposite to that required by the claims. Br. 17-18.
Appellants also reiterate the argument that Koike and Fujiwara fail to
disclose a sputtering target and characteristics thereof. Id. at 18-19.
Appellants additionally restate the argument that the claims require specific
impurity elements in a Cu-Mn alloy, including a relatively large amount of
La, and not simply overall purity level. Id. at 19-22. Regarding claims 2, 3,
5, 6, 15, 16, and 17, Appellants repeat the argument that the claims are
further distinguished based on the recited impurity limitations. Br. 22-24.
Accordingly, we are not persuaded of reversible error by the
Examiner in rejecting claim 1 over the combination of Michaluk or
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Application 12/300, 173
Wickersham in view of Koike and further in view of Fujiwara for the same
reasons discussed above in connection with rejection 1.
Conclusion
For the foregoing reasons, we affirm all of the Examiner's rejections
under 35 U.S.C. § 103(a).
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)(v).
AFFIRMED
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