Ex Parte Joshi et al

Patent Trial and Appeal Board

Sep 17, 2012

11462009 (P.T.A.B. Sep. 17, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
11/462,009 08/02/2006 Amol Ramesh Joshi 0180384 4578
16397 7590 09/17/2012
Farjami & Farjami LLP
26522 La Alameda Ave.
Suite 360
Mission Viejo, CA 92691
EXAMINER
WHALEN, DANIEL B
ART UNIT PAPER NUMBER
2829
MAIL DATE DELIVERY MODE
09/17/2012 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 AMOL RAMESH JOSHI, MENG DING, and
TAKASHI ORIMOTO
____________

Appeal 2011-007174
Application 11/462,009
Technology Center 2800
____________

Before JOSEPH F. RUGGIERO, ERIC B. CHEN,
and BRUCE R. WINSOR, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-007174
Application 11/462,009

2
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-20, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part and institute a new ground of rejection within the
provisions of 37 C.F.R. § 41.50(b).

RELATED APPEALS
We note that Appellants’ Specification identifies two related co-
pending patent applications (Spec. 1:3-13). Only one of the related
applications has been identified in the Specification by application number.
The other is identified by title, inventive entity, and assignee. Although not
identified by Appellants (Br. 2) or the Examiner (Ans. 2), our review
indicates that both of the related applications are the subject of co-pending
related appeals:
Application 11/277,008 Appeal 2011-011507
Application 11/461,998 Appeal 2010-000489

STATEMENT OF THE CASE
Appellants’ invention relates to non-volatile memory systems. (Spec
1:15-16). Claims 1 and 6, which are illustrative of the invention, read as
follows (with the disputed limitations emphasized):
Claim 1: A memory cell manufacturing method
comprising:
forming a first insulator layer over a semiconductor
substrate;
forming a first intermediate region having a gradient of a
silicon over the first insulator layer;
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forming a charge trap layer over the first intermediate
region;
forming a second intermediate region having a gradient
of a silicon over the charge trap layer; and
forming a second insulator layer over the second
intermediate region.
Claim 6: A memory cell manufacturing method
comprising:
forming a first dielectric layer over a semiconductor
substrate;
forming a first nitride gradient region over the first
dielectric layer;
forming a silicon layer over the first nitride gradient
region;
forming a second nitride gradient region over the silicon
layer; and
oxidizing a second dielectric layer over the the [sic]
second nitride gradient region.
Claims 1-4, 11-14, and 16-20 stand rejected under 35 U.S.C. § 102(e)
as anticipated by Chen ‘9441 (US 2005/0199944 A1; Sept. 15, 2005; filed
Apr. 26, 2004). (Ans. 3-5).
Claims 5-10 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Chen ‘944. (Ans. 6-8).
Rather than repeat the arguments here, we refer to the Brief and the
Answer for the respective positions of Appellants and the Examiner. Only
those arguments actually made by Appellants have been considered in this
decision. Arguments that Appellants did not make in the Brief have not
been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii).

1 Chen ‘944 is referred to in the record as “Chen.”
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ISSUES
The issues raised by Appellants’ contentions are as follows:
Does Chen ‘944 disclose “forming a charge trap layer over [a] first
intermediate region,” as recited in claim 1?
Does Chen ‘944 teach or suggest “forming a silicon layer over [a] first
nitride gradient region,” as recited in claim 6?
Does Chen ‘944 teach or suggest “oxidizing a second dielectric layer
over [a] second nitride gradient region,” as recited in claim 6?

ANALYSIS
Claim 1
The Examiner finds that Chen ‘944 discloses all of the elements of
claim 1 (Ans. 3-4). More particularly, the Examiner finds that the formation
of Chen ‘944’s charge trap layer (Chen ‘944, Fig. 5, Ref. 114) comprises the
recited forming of the “first intermediate region,” “charge trap layer,” and
“second intermediate region.” (Ans. 3-4).
Appellants contend that “Chen [‘944] fails to disclose a charge
trapping layer situated between a distinct first intermediate region and a
distinct second intermediate region, as specifically required in independent
claim 1.” (Br. 9-10). Appellants further contend that Chen ‘944’s structure
is incapable of achieving the advantages of Appellants’ invention such as
“reduc[ing] leakage current while providing the flexibility to tune desired
erase and program performance into its charge trapping layer without
significantly altering its structure’s data retention properties” (Br. 10), and
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“facilitat[ing] formation of a second insulator layer . . . through steam
oxidation” (id.).
We agree with the Examiner and, with regard to claim 1, adopt the
Examiner’s findings (Ans. 3-4) and explanations in response to Appellants’
arguments (Ans. 8-10) as our own.
As an initial matter, we construe the term “layer” in claim 1.
[T]he [US]PTO applies to the verbiage of the proposed claims
the broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). “Though understanding
the claim language may be aided by the explanations contained in the
written description, it is important not to import into a claim limitations that
are not a part of the claim.” SuperGuide Corp. v. DirecTV Enters., Inc., 358
F.3d 870, 875 (Fed. Cir. 2004).
A layer is “one thickness, course, or fold laid or lying over or under
another,” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 660 (10th ed.
1999) (emphasis added), “stratum” (id.). We conclude that the broadest
reasonable meaning of “layer” encompasses, inter alia, a thickness of a
material that is uniform in composition and a thickness that is non-uniform,
as well as a thickness that is laid in a discrete process resulting in definite
upper and lower boundaries, and a thickness that is laid as a part of a varying
continuous process resulting in multiple thicknesses. “Layer” also
encompasses a thickness that is made by altering a portion of another
thickness. We further conclude that, as used in claim 1, the term “region” is
broader than, but encompasses, a “layer.”
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Although Chen ‘944 denominates trapping layer 114 as a “two-stage
graded layer” (Chen ‘944, ¶ [0044]), we look to the reference for all it would
have taught to one of ordinary skill in the art, In re Fritch, 972 F.2d 1260,
1264 (Fed. Cir.1992), rather than the vocabulary and semantics employed by
the reference, In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). Under the
broadest reasonable interpretation of “layer” and “region” Chen ‘944’s
trapping layer teaches three thicknesses (i.e. layers or regions) in direct
contact with each other. One of ordinary skill in the art would have
recognized that Chen ‘944’s trapping layer 114 comprises: (1) a lower
thickness (i.e., “first intermediate region”) or portion in which the
silicon/nitrogen composition ratio increases from the bottom side located
over and in direct contact with Chen ‘944’s tunnel dielectric layer 102
toward a middle portion; (2) a middle thickness (i.e., “charge trapping
layer”) or middle portion located over and in direct contact with the lower
thickness, which has a higher silicon content than either the lower or upper
thicknesses or portions; and (3) an upper thickness (i.e., “second
intermediate region” ) or portion located on and in direct contact with the
middle thickness, in which the silicon/nitrogen concentration decreases from
the middle portion toward Chen ‘944’s barrier dielectric layer 106 (Chen
‘944, Fig. 4; ¶ [0044]; see also ¶¶ [0045], [0061]).
Appellants’ contention that Chen ‘944 does not disclose “distinct”
intermediate regions (Ans. 9-10) is unpersuasive as the limitation “distinct”
is not recited in claim 1. See SuperGuide, 358 F.3d at 875. Further, as
pointed out by the Examiner (Ans. 10), Appellants’ contentions that Chen’s
structure does not provide the advantages of Appellants’ invention are
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similarly unpersuasive as they relate to features not recited in claim 1. See
id.
Appellants have failed to persuade us of error in the Examiner’s
rejection of claim 1 as anticipated by Chen ‘944. Appellants do not
separately argue the patentability of claims 2-5 and 11- 20 with particularity.
Appellants rely on the arguments made regarding claim 1 in asserting that
claims 2-4, 11-14, and 16-20 are not anticipated by Chen ‘944 (Br. 10-11).
We find these arguments to be unpersuasive for the reasons set forth supra
regarding claim 1. Appellants rely on the arguments made regarding claim 1
in asserting that claims 5 and 15 are not unpatentable over Chen ‘944 (Br.
14-15). We find these arguments to be unpersuasive for the reasons set forth
supra regarding claim 1. Accordingly, we will sustain the rejections of
claims 1-5 and 11-20.
Claim 6
Appellants make substantially the same argument for the patentability
of claim 6 over Chen ‘944 that we find to be unpersuasive for the reasons set
forth supra regarding claim 1. We note that in construing claim 6 we
conclude that the broadest reasonable interpretation, see Morris, 127 F.3d at
1054, of “nitride gradient region” is a region, which may be a layer, that
comprises a varying concentration of nitride, but does not exclude other
constituents, such as silicon. We construe a “silicon layer” to be a layer that
comprises silicon, but does not exclude other constituents, such as nitride.
The Examiner finds that Chen ‘944 does not teach forming the second
dielectric layer by oxidizing a layer over the silicon nitride layer. (Ans. 6).
However, the Examiner further finds that formation a silicon oxide dielectric
layer by thermal oxidation is a well-known process that is readily available,
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making it obvious to one of ordinary skill in the art to form the second
dielectric layer by thermal oxidation. (Id.).
Appellants contend as follows:
Chen [‘944]’s lack of a protective intermediary layer makes
Chen [‘994]’s charge trapping layer susceptible to performance-
degrading damage during a steam oxidation process. See, e.g.,
page 11 lines 7-8 of the present application. As such, by failing
to provide an intermediary second nitride gradient region, as
required by independent claim 6, Appellants respectfully
submit that Chen [‘944] teaches away from using a thermal
oxidation growth process to form a second dielectric layer (e.g.,
barrier dielectric layer 106 in Figure 5 of Chen [‘944]).
(Br. 13-14).
The Examiner responds that Chen ‘944 “clearly teaches forming the
second nitride gradient region (the third sub-layer having a graded nitrogen-
rich silicon nitride region between barrier dielectric layer 106 and the
second sub-layer) over the silicon layer (fig. 5 & paragraph 44).” (Ans. 11).
We do not agree with Appellants (Br. 14) that Chen ‘944 teaches
away from steam oxidation, because Appellants have merely established that
Chen ‘944 does not teach steam oxidation. “[A] disclosure . . . does not
constitute a teaching away . . . [if] such disclosure does not criticize,
discredit, or otherwise discourage the solution claimed.” In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004). Appellants have not identified any
passage in Chen ‘944 that persuasively “criticize[s], discredit[s], or
otherwise discourage[s] the solution claimed” (id.). Additionally, we agree
with the Examiner (Ans. 6, 11) that Chen ‘944 teaches “forming a second
nitride gradient region over the silicon layer” as recited in claim 6.
Nevertheless, we conclude that the Examiner has failed to adequately
explain the grounds for rejection and has not adequately responded to
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Appellants’ arguments regarding damage of the silicon layer during steam
oxidation. Accordingly, we will not sustain the rejection of independent
claim 6 or claims 7-10, dependent thereon.

NEW GROUND OF REJECTION WITHIN 37 C.F.R. § 41.50(b)
Claim 6 is rejected on a new ground of rejection under 35 U.S.C.
§ 103(a) as unpatentable over Chen’944 as applied by the Examiner, in view
of Mori (US 5,304,829; Apr. 19, 1994).2
As found by the Examiner (Ans. 6), Chen ‘944 discloses all of the
limitations of claim 6 including forming a second dielectric layer over the
second nitride gradient region and the silicon layer. Chen ‘944 does not
disclose that the second dielectric layer is formed by oxidizing. We note
that claim 6 recites “oxidizing a second dielectric layer over the . . . second
nitride gradient region” (emphasis added). Claim 6 does not recite that the
second dielectric layer is formed by oxidizing the second nitride gradient
region, does not require direct contact between the second dielectric layer
and the second nitride gradient region, and does not preclude oxidizing the
second dielectric layer from a protective layer over both the second nitride
gradient region and the silicon layer.
Mori teaches forming a silicon oxide film 15 (i.e., “second dielectric
layer”) over a silicon layer 13 and silicon nitride layer 14 by oxidizing the
upper portion of an underlying silicon nitride layer 14 (Mori, Fig. 4, Refs.
14, 15; col. 8, ll. 11-37; col. 9, ll. 5-8) that is over the underlying silicon
layer 13. One of ordinary skill in the art would have understood that Mori’s
silicon nitride layer 14 protects silicon layer 13 during the oxidation process.

2 Mori was cited in related Application 11/461,998.
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Chen ‘944 and Mori are both in the same field of endeavor, non-
volatile memory devices (see Chen ‘944, Abstract; Mori, Abstract), and are,
therefore, analogous art. It would have been obvious to a person of ordinary
skill in the art to utilize Mori’s process for forming a dielectric layer from
the upper portion of an underlying silicon nitride layer in Chen ‘944’s
memory cell manufacturing method in order to produce a high quality film
and enhance the charge retaining property of the film (Mori, col. 8, ll. 26-
29).

ORDER
The decision of the Examiner to reject claims 1-5 and 11-20 is
affirmed.
The decision of the Examiner to reject claims 6-10 is reversed.
We enter a new ground of rejection for claim 6 under 35 U.S.C.
§ 103(a).3
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection . . .
shall not be considered final for judicial review.”
Section 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of

3 We leave to the Examiner to enter such rejections of claims 7-10 under 35
U.S.C. § 103(a) as unpatentable over Chen ‘944 and Mori, alone or in
combination with other references, as may be appropriate. We also leave to
the Examiner to ascertain whether any of claims 1-20 should be
provisionally rejected over the claims of Application 11/461,998 under the
judicially created doctrine of obviousness-type double patenting. See MPEP
§ 804 (8th ed., 2001, rev. 2010)
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the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record.
37 C.F.R. § 41.50(b).
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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)

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