Ex Parte Maltby

Patent Trial and Appeal Board

Sep 17, 2012

11752054 (P.T.A.B. Sep. 17, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/752,054 05/22/2007 Michael G. Maltby F4500.1091/P1091 3097
16080 7590 09/18/2012
Dickstein Shapiro LLP -First Solar
1825 Eye Street, NW
Washington, DC 20006
EXAMINER
CHEN, KEATH T
ART UNIT PAPER NUMBER
1716
MAIL DATE DELIVERY MODE
09/18/2012 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 MICHAEL G. MALTBY
____________

Appeal 2011-004563
Application 11/752,054
Technology Center 1700
____________

Before TERRY J. OWENS, HUBERT C. LORIN, and
LINDA M. GAUDETTE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

Appeal 2011-004563
Application 11/752,054

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DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting claims 1-6, 10-14, 21-24, and 26-28.2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
The invention is directed to preventing variations in film uniformity and film
properties on a substrate, by reducing disturbances in the geometry or air flow
during material deposition. (See Spec.3 1:13-16; 3:13-19.) Claim 1 is
representative of the invention and is reproduced below from the Claims Appendix
to the Appeal Brief:
1. A system for depositing a material on a substrate, comprising:
a deposition nozzle configured to introduce a vapor of a material toward a
first surface of a substrate;
a transport mechanism configured to transport the substrate past the nozzle;
a first substantially flat surface opposite the nozzle and in a void region
between elements of a transport mechanism; and
an exhaust basket positioned substantially directly beneath the first
substantially flat surface, wherein the exhaust basket is connected to a source of
reduced pressure, the exhaust basket having an intake, the intake positioned
beneath the nozzle and beneath a second surface of the substrate and above the
source of reduced pressure, and extending beyond the width of the substrate.
The Examiner maintains the following grounds of rejection under 35 U.S.C.
§103(a):
1. claims 1, 2, 5, 6, 10, 11,14, 21, 23, 26, and 27 as unpatentable over
Sato (US 2004/0168907 A1, published Sep. 2, 2004), in view of Heitzer (US

1 Final Office Action mailed Mar. 30, 2010 (“Final”)
2 Appeal Brief filed Sep. 13, 2010 (“Br.”)
3 Specification filed May 22, 2007.
Appeal 2011-004563
Application 11/752,054

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5,080,774, issued Jan. 14, 1992) and Sugiyama (US 2005/0001527 A1, published
Jan. 6, 2005) (Ans. 4 3-6);
2. claims 3, 12, 22, and 24 as unpatentable over Sato, Heitzer, and
Sugiyama, further in view of Rich (US 2004/0154748, published Aug. 12, 2004)
(Ans. 6-7);
3. claims 13 and 28 as unpatentable over Sato, Heitzer, and Sugiyama,
further in view of Ribnitz (US 4,883,506, issued Nov. 28, 1989) (Ans. 7); and
4. claim 4 as unpatentable over Sato, Heitzer, and Sugiyama, further in
view of Wendt (US 6,372,538 B1, issued Apr. 16, 2002) (Ans. 8).
Appellant’s arguments are directed to limitations common to independent
claims 1 and 21. (See generally, Br. 3-7.) Appellant does not present arguments in
support of separate patentability of any particular claim or claim grouping.
Accordingly, we decide patentability as to all appealed claims on the basis of
independent claim 1.
Based on the respective positions of the Examiner and Appellant, the issues
we consider are: did the Examiner reversibly err in finding the applied prior art
discloses or suggests (1) “an intake positioned beneath a nozzle” (Br. 4); (2) an
“exhaust basket . . . positioned substantially directly beneath the first substantially
flat surface” (id.); and (3) “an intake positioned above the source of reduced
pressure, and extending beyond the width of the substrate” (id.)?
We answer these questions in the negative for the reasons expressed by the
Examiner in the Final and Answer. We add the following for emphasis.
Appellant concedes Sato teaches a conduit (not numbered in the reference)
by which the film forming chamber 206 is connected to a vacuum pump 204 for
exhausting the chamber 206. (See Br. 4; Sato [0051].) The Examiner found, and

4 Examiner’s Answer mailed Oct. 14, 2010.
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Application 11/752,054

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Appellant does not dispute (see generally, Br. 3-7), that Sato’s “vacuum pump
[204] intrinsically has an intake/inlet” (Final 10). The Examiner further found, and
Appellant does not dispute (see generally, Br. 3-7), that Sato introduces a gas via a
pipe/nozzle 207 (Final 2; Ans. 3). However, Appellant contends the exhaust
basket, as claimed, does not read on the conduit because the conduit “does not
have an intake positioned beneath a nozzle.
“During patent examination the pending claims must be interpreted as
broadly as their terms reasonably allow.” In re Zletz, 893 F.2d 319, 321-22 (Fed.
Cir. 1989).
While Sato does not specifically identify the location of the orifice where
gas enters the chamber (see Sato [0051]), it is readily apparent from Sato’s
description (see e.g., id.) and Figure 2 that the conduit and vacuum pump 204 are
located at a position which is properly viewed as “beneath” the pipe/nozzle 207
where gas enters chamber 206. In this regard, we note that we interpret the term
“beneath” to mean “[i]n a lower place; below.”5 We have reviewed the
Specification and claims and find no basis for a narrower construction of the term
“beneath” as requiring positioning of the exhaust basket directly beneath the
nozzle. In fact, to interpret the term “beneath” more narrowly would render
meaningless the phrase “substantially directly,” which precedes the claim term
“beneath” when defining the position of the exhaust basket with respect the flat
surface. See CAT Tech LLC v. Tubemaster, Inc., 528 F.3d 871, 885 (Fed. Cir.
2008) (quoting Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006)

5 beneath. (2007). In The American Heritage® Dictionary of the English
Language. Retrieved from
http://www.credoreference.com/entry/hmdictenglang/beneath.
Appeal 2011-004563
Application 11/752,054

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(“[C]laims are interpreted with an eye toward giving effect to all terms in the
claim.”)).
Appellant’s remaining arguments are unpersuasive because they fail to
address the facts and reasons relied on by the Examiner in rejecting the claims, i.e.,
Appellant does not explain why the combined teachings of the references would
not result in the invention as claimed. More specifically, Appellant does not
dispute the Examiner’s proposed motivation for modifying Sato’s system based on
Heitzer to include a substantially flat surface as claimed (Ans. 4-5). (See
generally, Br. 3-7.) Appellant has not explained, with any degree of specificity,
why the resultant structure would not result in “an exhaust basket positioned
substantially directly beneath the first substantially flat surface” (claim 1). (See id.
at 4-5.) Likewise, Appellant has not explained why Sato’s system, as modified by
Sugiyama, would not result in “an intake positioned . . . above the source of
reduced pressure” which would be capable of “extending beyond the width of the
substrate” (claim 1; see Ans. 5) 6. (See Br. 4-5.)
In sum, because Appellant has not persuasively demonstrated error in the
Examiner’s conclusion of obviousness, we affirm the Examiner’s decision to reject
claims 1-6, 10-14, 21-24, and 26-28.
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).
AFFIRMED

6 We are in agreement with the Examiner that the “substrate” is not part of
Appellant’s claimed system, and “the width of the substrate is an intended use”
(Ans. 10). See Intel Corp. v. U.S. Int'l Trade Comm'n, 946 F.2d 821, 832 (Fed.
Cir. 1991) (noting courts have interpreted functional language in an apparatus
claim as requiring that the apparatus possess the capability of performing the
recited function).
Appeal 2011-004563
Application 11/752,054

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