Ex Parte KRASSNITZER et al

Patent Trials and Appeals Board

Mar 6, 2019

11870119 - (D) (P.T.A.B. Mar. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/870,119 10/10/2007
21706 7590 03/08/2019
NOTARO, MICHALOS & ZACCARIA P.C.
100 DUTCH HILL ROAD
ORANGEBURG, NY 10962
FIRST NAMED INVENTOR
SIEGFRIED KRASSNITZER
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.
H60-135 US 4270
EXAMINER
BAND, MICHAEL A
ART UNIT PAPER NUMBER
1794
NOTIFICATION DATE DELIVERY MODE
03/08/2019 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):
patent@notaromichalos.com
USPTO@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SIEGFRIED KRASSNITZER, OLIVER CSTOEHL,
and DANIEL LEWIS
Appeal2018-005382
Application 11/870, 119
Technology Center 1700
Before KAREN M. HASTINGS, JENNIFER R. GUPTA, and
JANEE. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants request our review under 35 U.S.C. § 134(a) of the
Examiner's decision to reject claims 24--26, 28, 29, 31, 32, 35--40, and 42-
47. We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
STATEMENT OF THE CASE
Appellants claim a vacuum treatment chamber defining a reaction
space (independent claim 24) and a vacuum treatment apparatus
(independent claims 43 and 44). App. Br. 6-8. Independent claim 24
1 Appellants identify Oerlikon Trading AG, Trubbach as the real party in
interest. Appeal Brief filed December 28, 2017 ("App. Br."), 3.
Appeal2018-005382
Application 11/870, 119
illustrates the subject matter on appeal and is reproduced below with
emphasis added to highlight contested subject matter:
24. A vacuum treatment chamber defining a reaction space
and comprising:
a plasma discharge arrangement comprising an electron
source cathode, an anode arrangement and a substrate carrier,
said electron source cathode and an anode electrode of said
anode arrangement being operationally interconnectable via an
electric supply source;
said anode electrode having a shape of a two-
dimensionally extended plate with a surface area facing said
reaction space;
a confinement with an inner space and an opening open
towards said reaction space and through which said surface
area of said anode electrode is exposed to and faces said
reaction space,
said inner space of said confinement being U-shaped at
least in one cross sectional plane through said confinement,
and
said anode electrode being mounted along a bottom of
said confinement, spaced from said confinement and electrically
isolated from said confinement,
said surface area of said anode electrode extending closer
to said bottom of said confinement than to said opening of said
confinement,
said opening of said confinement opening towards said
reaction space and towards the substrate carrier,
said electron source cathode being located outside of said
confinement,
said substrate carrier being mounted within said vacuum
chamber and in said reaction space so as to position a surface
area of a substrate on said substrate carrier facing said opening
and substantially closer to said opening than to said electron
source cathode,
said substrate carrier being connectable to an electric
source.
App. Br. 17-18 (Claims Appendix) (emphasis added).
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Application 11/870, 119
Independent claim 44 is directed to a vacuum treatment apparatus and
includes the limitations of claim 24 italicized above.
The Examiner sets forth the following rejections in the Non-Final
Office Action entered October 24, 2017 ("Non-Final Act."), and maintains
the rejections in the Examiner's Answer entered March 8, 2018 ("Ans."):
I. Claims 24, 25, 28, 29, 31, 32, 36, 38--40, 42, and 44--47 2 under
35 U.S.C. § I03(a) as unpatentable over Grimm et al. (DE 4228499 Cl,
issued October 7, 1993, English translation entered October 24, 2017,
hereinafter "Grimm")3 in view of Henrich et al. (DE 4306611 Al, published
September 8, 1994, English translation filed by Appellants February 10,
201 7, hereinafter "Henrich");
II. Claim 26 under 35 U.S.C. § I03(a) as unpatentable over Grimm
in view of Henrich and Metel et al. (US 6,285,025 B 1, issued September 4,
2001, hereinafter "Metel");
III. Claims 35 and 37 under 35 U.S.C. § I03(a) as unpatentable
over Grimm in view of Henrich and Moslehi (US 6,051,113, issued
April 18, 2000); and
IV. Claim 43 under 35 U.S.C. § I03(a) as unpatentable over
Gorokhovsky (US 6,663,755 B2, issued December 16, 2003) in view of
Grimm.
2 The Examiner's listing of claim 37 in the heading for this rejection (Non-
Final Act. 3) is apparently an inadvertent error because the Examiner
addresses claim 37 in a separate rejection (Rejection III) (Non-Final
Act. 11-13).
3 Appellants do not contest the Examiner's reliance on the English
translation of DE 4228499 Cl (Grimm).
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Application 11/870, 119
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants' contentions, we reverse the Examiner's rejections of
claims 24--26, 28, 29, 31, 32, 35--40, 42, and 44--47 under 35 U.S.C.
§ 103(a) (Rejections I-III) for the reasons set forth in the Appeal Brief and
below. We affirm the Examiner's rejection of claim 43 under 35 U.S.C.
§ 103(a) (Rejection IV) because Appellants do not contest this rejection.
Rejections I-III
Independent claims 24 and 44 each require the claimed vacuum
treatment chamber or apparatus to include, in part, an anode electrode that
has a shape of a two-dimensionally extended plate, and is mounted along a
bottom of a confinement having a U-shaped inner space and an opening
towards a reaction space.
The Examiner finds that Grimm discloses a vacuum treatment
chamber or apparatus having the features recited in claim 24 and 44,
including anode electrode 6 having a flat shape of a two-dimensionally
extended plate, except Grimm does not disclose or suggest a confinement in
which anode electrode 6 is arranged. Non-Final Act. 3, 8 (citing Grimm
Abstract, pg. 2, Fig.). The Examiner relies on Heinrich to address this
feature missing from Grimm's disclosures. Non-Final Act. 3-5, 8-9.
The Examiner finds that Heinrich discloses a vacuum treatment
chamber including anode arrangement 1 comprising U-shaped
confinement 13 or 15 with an inner space and opening that opens towards a
reaction space. Non-Final Act. 3--4, 8 (citing Heinrich Figs. 1 and 4). The
Examiner finds that Heinrich discloses that confinement 13 or 15 contains
two-dimensionally extended planar anode base 2 that is mounted along a
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Application 11/870, 119
bottom of confinement 13 or 15. Id. The Examiner finds that Heinrich
discloses that anode electrodes are "known to be a variety of shapes such as
flat plate or curved in addition to the shape shown in fig. 4 within a
confinement ... , with the shape shown in fig. 4 generating a more intensive
plasma." Non-Final Act. 4, 9 (citing Heinrich pg. 2, 11. 25-29; pg. 3, 11. 1--4,
15, 20-23; pg. 7, 11. 1-5). The Examiner finds that although Heinrich
teaches that an anode shaped as shown in Figure 4 "is a preferred
embodiment," Heinrich "cites the advantage of the confinement with the
anode electrode shaped as flat, curved, or as shown in fig. 4 as generating an
ionizing effect on the plasma to close a current loop across plasma between
cathode and anode in order to expose substrates to the plasma." Non-Final
Act. 4--5, 9 (citing Heinrich pg. 1, 11. 17-26; pg. 2, 11. 25-29; pg. 3, 11. 1-23).
The Examiner concludes that it would have been obvious to one of ordinary
skill in the art at the time of Appellants' invention:
to incorporate the confinement of Heinrich to confine the planar
anode of Grimm to thereby form a plasma source comprising
the planar anode within the confinement instead a plasma
source with only the planar anode; the advantage of the
proposed combination is generation of an ionizing effect
(i.e. intensity) on the plasma to then expose the substrate to this
plasma.
Ans. 16 ( citing Heinrich pg. 1, 11. 17-26; pg. 2, 11. 25-29; pg. 3, 11. 1-23;
pg. 7, 11. 1-5).
On this appeal record, however, the Examiner does not provide a
sufficient factual basis to support the Examiner's conclusion of obviousness,
for reasons expressed by Appellants and discussed below.
Grimm discloses a method and device for plasma-assisted coating of
substrates in which plasma density is substantially increased by means of a
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Application 11/870, 119
vacuum arc that "bums against" plane-shaped anodic electrode 6. Grimm
pgs. 1-2. Grimm discloses that the method and device described in the
reference produce substantial improvements in deposited layers due to
ionization of a substantially higher proportion of reactive gas. Grimm pg. 1.
Heinrich discloses an apparatus for surface treating substrates by
means of plasma impact that includes anode 1 having five sides 2, 4, 5, 6, 7
that enclose hollow space 8 having an opening facing substrate guiding
arrangement 9. Heinrich pgs. 1, 3--4, 10-11; Fig. 1. Heinrich discloses
providing first 11 and second 12 magnet systems on the outside of opposing
longitudinal sides 4, 5 of anode 1, which produce magnetic field lines that
traverse hollow space 8 enclosed by the anode. Id. Heinrich discloses
mounting first 11 and second 12 magnet systems to a U-shaped magnet yoke
13, which is surrounded by casing 15. Heinrich pg. 13. Heinrich discloses
that the apparatus generates a very intense plasma source due to the effect of
the magnetic field and confinement of the electrons in the hollow anode.
Heinrich pg. 4.
Heinrich discusses a prior art apparatus disclosed in DE-PS 40 38 497
that includes a plate-shaped electrode and magnet system that generates
magnetic fields with tunnel-shaped field lines on the side of the electrode.
Heinrich pg. 2. Heinrich discloses that in this prior art apparatus "the
ionizing effect of the magnetic fields on the plasma is small, due to the small
plasma confinement." Heinrich pg. 3. Heinrich discusses another prior art
apparatus disclosed in DE-OS 40 09 151 that includes a partly cylindrically-
bent anode and magnet system that generates field lines extending along the
surface of the anode. Heinrich pg. 3. Heinrich discloses that "the ionizing
effect of the anode on the plasma is relatively small" in this prior art
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apparatus. Id.
Heinrich discloses that the plasma source of Heinrich's invention
"may advantageously be applied instead of the plane (DE-PS 40 497) or
slightly bent anode sheets (DE-OS 40 09 151 ), thereby significantly
increasing the intensity of the plasma." Heinrich pg. 7.
Although, as discussed above, the Examiner asserts that Heinrich
"cites the advantage of the confinement with the anode electrode shaped as
flat, curved, or as shown in fig. 4 as generating an ionizing effect on the
plasma," Heinrich discloses that prior art plane or plate-shaped and partly or
slightly-bent anodes used with magnetic systems disadvantageously generate
a small ionizing effect on plasma. Non-Final Act. 5. We find no disclosure
in Heinrich of using a "confinement" with a flat or curved anode, much less
an "advantage of the confinement with the anode electrode shaped as flat
[or] curved." Rather, as Appellants point out (App. Br. 11-12), and as
discussed above, Heinrich discloses that replacing the prior art plane or
slightly bent anodes with the plasma source of Heinrich's invention, which
includes a five-sided anode enclosing a hollow space, significantly increases
the intensity of the plasma.
Accordingly, the Examiner does not provide a persuasive, reasoned
explanation supported by objective evidence-and having rational
underpinning-for why one of ordinary skill in the art would have been led
to incorporate Heinrich's U-shaped magnet yoke 13 surrounded by
casing 15, which the Examiner finds corresponds to the confinement recited
in claims 24 and 44, into Grimm's apparatus. As discussed above, Grimm's
device includes a plane-shaped electrode and substantially increases plasma
density due to ionization of a substantially higher proportion of reactive gas.
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In view of this disclosure that Grimm's device already substantially
increases plasma density, and Heinrich's disclosure of significantly
increasing plasma intensity by replacing a plane-shaped or slightly bent
anode with the plasma source of Heinrich's invention that includes a five-
sided anode enclosing a hollow space, the Examiner's assertion that it would
have been obvious to "incorporate the confinement of Heinrich to confine
the planar anode of Grimm [to generate] an ionizing effect (i.e. intensity) on
the plasma" lacks rational underpinning. KSR Int 'l Co. v. Teleflex Inc., 550
U.S. 398,418 (2007) ("[R]ejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.")
The Examiner does not provide a reasoned explanation having
rational underpinning as to why one of ordinary skill in the art would have
incorporated a confinement around Grimm's planar anode-which already
produces substantially increased plasma density-when Heinrich discloses
use of a confinement with a five-sided anode enclosing a hollow space in
place of a planar anode to significantly increase plasma intensity.
Accordingly, the Examiner does not establish that the combined
disclosures of Heinrich and Grimm would have suggested an anode
electrode that has a shape of a two-dimensionally extended plate, and is
mounted along a bottom of a confinement having a U-shaped inner space
and an opening towards a reaction space, as required by claims 24 and 44.
We accordingly do not sustain the Examiner's rejection of claims 24
and 44, and the rejections of claims 25, 26, 28, 29, 31, 32, 35--40, 42, and
45--47, which each depend from claim 24 or 44, under 35 U.S.C. § 103(a).
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Rejection IV
We summarily sustain the Examiner's rejection of claim 43 under
35 U.S.C. § 103(a) because Appellants do not contest this rejection. App.
Br. 9--16. 37 C.F.R. § 4I.37(c)(l)(iv) (Requiring that "arguments shall
explain why the examiner erred as to each ground of rejection [and that] any
arguments or authorities not included in the appeal brief will be refused
consideration by the Board."); see also Manual of Patent Examining
Procedure (MPEP) § 1205.02 (9th ed. Mar. 2014) ("If a ground of rejection
stated by the examiner is not addressed in the appellant's brief, appellant has
waived any challenge to that ground of rejection and the Board may
summarily sustain it, unless the examiner subsequently withdrew the
rejection in the examiner's answer.").
DECISION
We affirm the Examiner's rejection of claim 43 under 35 U.S.C.
§ 103(a), and reverse the Examiner's rejections of claims 24--26, 28, 29, 31,
32, 35--40, 42, and 44--47 under 35 U.S.C. § 103(a).
AFFIRMED-IN-PART
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