Ex Parte McTeer

Patent Trial and Appeal Board

Oct 23, 2012

11370269 (P.T.A.B. Oct. 23, 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.
11/370,269 03/07/2006 Allen McTeer 05-0106 (MICS:0143) 8978
52142 7590 10/23/2012
FLETCHER YODER (MICRON TECHNOLOGY, INC.)
P.O. BOX 692289
HOUSTON, TX 77269-2289
EXAMINER
BAND, MICHAEL A
ART UNIT PAPER NUMBER
1754
MAIL DATE DELIVERY MODE
10/23/2012 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 ALLEN McTEER
____________

Appeal 2011-008122
Application 11/370,269
Technology Center 1700
____________

Before ROMULO H. DELMENDO, BEVERLY A. FRANKLIN, and
GRACE KARAFFA OBERMANN, Administrative Patent Judges.

OBERMANN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims 1-7 and 19-
30 directed to a method of sputtering a tensile silicon nitride film. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

STATEMENT OF THE CASE
Claim 1 is illustrative of the subject matter on appeal:
1. A method comprising:

introducing nitrogen gas into a process chamber, wherein the process
chamber includes a target comprising silicon;
Appeal 2011-008122
Application 11/370,269

2

placing the process chamber into a transition region between a
metallic region and a poisoned region;

applying a voltage to the target; and

sputtering a tensile silicon nitride film while the process chamber is in
the transition region.

The Examiner relies on the following evidence of unpatentability:

Yao "Fabrication and Surface Characterization of Pulsed Reactive
Closed Field Unbalanced Magnetron Sputtered Amorphous
Silicon Nitride Films" Surface & Coatings Technology, vol.
200, no. 12-13, March 2006, p. 4144-4151

Belyansky 2006/0223290 Oct. 5, 2006

THE REJECTION
Claims 1-7 and 19-30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Yao as further evidenced by Belyansky. Ans. 3.1

ISSUES
The following dispositive issues arise:
1. Does the Examiner err in concluding that the subject matter of
claim 1, including the limitation that requires “sputtering a tensile silicon
nitride film while the process chamber is in the transition region,” would
have been obvious over the applied art?

1 We refer to the Examiner’s Answer mailed February 17, 2011 (“Ans.”), the
Appeal Brief filed January 24, 2011 (“App. Br.”), and the Reply Brief filed
April 18, 2011 (“Reply Br.”).
Appeal 2011-008122
Application 11/370,269

3
2. Does the Examiner err in concluding that the subject matter of
claim 19, including the limitation that requires a sputtering method carried
out at an operating pressure that “is approximately 6.5 mT or above,” would
have been obvious over the applied art?
We answer both questions in the negative and AFFIRM. The
evidence supports the Examiner’s findings of fact and conclusions of law.
We thus adopt the reasoning set forth in the Answer and provide the
following analysis for emphasis only.

ANALYSIS
Appellant argues claims 1 and 24 as a group, briefly discussing
claims 7 and 30 within that group. App. Br. 6-9 (discussing claims 7 and 30
on page 7). We select claim 1 as representative of the group, referring to
claims 7 and 30 as necessary to fully address Appellant’s arguments.
Appellant separately argues, and we separately address, claim 19. App.
Br. 9-12. In a summary statement, Appellant states: “Appellant respectfully
requests that the Board direct the Examiner to withdraw the rejection of
independent claims 1, 19, and 24 . . . along with their respective dependent
claims.” App. Br. 12. Claims 2-6 and 20-29 thus stand or fall with
claims 1, 7, 19, and 30. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner finds that Yao discloses a method of fabricating silicon
nitride films, using nitrogen and argon gases, wherein a target of silicon is
connected to a pulsed DC power supply. Ans. 3 (citing Yao Abstract and
p. 4145, right col.; Fig. 1). The Examiner further finds that Table 1 of Yao
reports an example of silicon nitride film fabrication using a nitrogen flow
rate of 20%, which according to Figure 2 of Yao, places the process chamber
Appeal 2011-008122
Application 11/370,269

4
into a transition region. Id. at 3-4; see Ans. 6 (Yao discloses “a pure silicon
sputtering (i.e. metallic) mode, a transition mode, and a compound reactive
[s]puttering (i.e. poisoned) mode”) (citing Yao p. 4146, right col., 2nd para.).
On this record, the Examiner determines that Yao and claim 1 disclose
substantially the same method for forming silicon nitride films. Ans. 4, 7.
Appellant disagrees and contends that Yao fails to disclose “sputtering
a tensile silicon nitride film while the process chamber is in the transition
region” as specified in claim 1. App. Br. 6-8. Specifically, Appellant
contends that “parameters” relating to the voltage applied in the method of
claim 1 affect the formation of the tensile film and “are not discussed in
Yao.” App. Br. 7. However, in Yao “a target of silicon is connected to a
pulsed DC power supply,” Ans. 3, which appears to fully satisfy the claim 1
requirement of “applying a voltage to the target.” Claim 1; see Spec. 10:12-
13 (“a pulsed DC supply is also advantageous for sputtering off the target”).
Any additional “steps and parameters” relating to the voltage, which in
Appellant’s view affect the formation of a tensile film, are unclaimed and
thus irrelevant. App. Br. 7; see Claim 1 (specifying “applying a voltage to
the target” without any further limitation on the voltage).
On this record, we agree with the Examiner that Yao and claim 1
appear to disclose substantially the same method for fabricating silicon
nitride films, therefore, the films thus made are presumed to inherently
possess substantially identical properties. Ans. 4, 7; see In re Best, 562 F.2d
1252, 1255 (CCPA 1977) (“Where, as here, the claimed and prior art
products are identical or substantially identical, or are produced by identical
or substantially identical processes, the PTO can require an applicant to
prove that the prior art products do not necessarily or inherently possess the
Appeal 2011-008122
Application 11/370,269

5
characteristics of his claimed product.”). Accordingly, the Examiner prima
facie shows that Yao’s method produces a film that is inherently “tensile” as
specified in claim 1. The question remains whether Appellant has come
forward with persuasive argument or evidence establishing that Yao does
not inherently disclose “sputtering a tensile silicon nitride film while the
process chamber is in the transition region.” Claim 1 (emphasis added).
On this point, Appellant contends that Yao teaches away from a
nitrogen flow rate of 20% (the flow rate that places the process chamber in
the transition region). App. Br. 8-9. We agree with Appellant that Yao
discloses increasing the N2 flow rate to preferentially increase the amount of
nitrogen incorporated in the silicon-nitride network. Id. at 8 (citing Yao
p. 4147, right col.). However, we further agree with the Examiner that this
disclosed preference does not overcome the fact that Yao fabricates a film
made according to a process that is substantially identical to the method of
claim 1: Specifically, Yao discloses “experimenting and conducting the
sputtering of silicon using the N2 flow rate of 20% to form a silicon nitride
film, which fig. 2 shows to be in the transition mode.” Ans. 7; see Yao
Table 1; Fig 2; p 4146, second col.
“A known or obvious composition does not become patentable simply
because it has been described as somewhat inferior to some other product for
the same use.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Appellant’s
position that Yao prefers “placing the chamber into a reactive mode using
higher fractions of N2” does not, in our view, obviate Yao’s clear description
of fabricating a silicon nitride film in the transition mode. See App. Br. 8
(citing Yao p. 4147, right col., Figs. 1 and 2) (emphasis omitted).
Appellant’s further observation that Yao neither mentions the tensile
Appeal 2011-008122
Application 11/370,269

6
property of the film, nor is concerned with film stress, is irrelevant where the
rejection is based on Yao’s inherent disclosure of the tensile property. App.
Br. 6; Ans. 4, 6-7. On this record, we thus affirm the rejection of claim 1.
Appellant argues that Yao’s method is not shown to produce a
concave film as specified in claims 7 and 30. App. Br. 8-9. The Examiner
finds, and we agree, that where “Yao teaches the identical chemical structure
(i.e. tensile silicon nitride film), the properties (i.e. concave shape) . . . are
necessarily present.” Ans. 7. The Examiner’s position on this point is
supported by Appellant’s own written description, which informs that tensile
silicon nitride films tend to bend in a concave shape. Ans. 7 (citing Spec.
4:11-13). On this record, we thus affirm the rejection of claims 7 and 30.
Claim 19 specifies a pressure range that “is approximately 6.5 mT or
above.” The Examiner finds that Yao discloses an operating pressure of
“around 0.8 Pa” which is about 6.0 mT. Ans. 8 (citing Yao p. 4145, right
col., last two lines). In the Examiner’s view, Yao’s operating pressure of
about 6.0 mT is “close enough” to the specified range of “approximately 6.5
mT” such that an ordinary artisan would have expected these ranges to
produce substantially the same results. Id. at 5. Appellant disagrees and
contends that “the fixed pressure of 0.8 Pa (6.0 mT) in Yao’s experiment
affected the deposition rate of SiN.” App. Br. 10 (citing Yao p. 4147, left
column). However, while the pressure in Yao’s experiment may have been
fixed at 6.0 mT, the Examiner correctly finds that Yao discloses a pressure
range of “about” 6.0 mT. Ibid.
Appellant further argues that Figure 4 of the Specification shows that
claim 19 defines a method that, in the transition mode represented by curve
62, produces a tensile film only when the “pressure is set to greater than or
Appeal 2011-008122
Application 11/370,269

7
equal to 6.5 mT.” Id. at 11 (emphasis in original). That argument, however,
cannot be reconciled with the plain terms of claim 19. Claim 19 does not
recite an operating pressure of “greater than or equal to 6.5 mT,” id., but
rather, specifies a pressure range of “approximately 6.5 mT or above.”  
Claims measure the invention. See SRI Int’l. v. Matsushita Elec. Corp. of
Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). During prosecution,
the PTO gives “claims their broadest reasonable construction” in order to
serve “the public interest by reducing the possibility that claims, finally
allowed, will be given broader scope than is justified.” In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re
Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984)). “Construing claims
broadly during prosecution is not unfair to the applicant . . . because the
applicant has the opportunity to amend the claims to obtain more precise
claim coverage.” American Academy, 367 F.3d at 1364.
We thus decline Appellant’s invitation, based on Figure 4 of the
Specification, to effectively rewrite claim 19 on appeal by adopting a
construction that replaces the phrase “approximately 6.5 mT or above” with
the phrase “greater than or equal to 6.5 mT.” App. Br. 11 (emphasis
omitted). In our view, the plain terms of claim 19 represent the most
compelling evidence of record and support the Examiner’s finding that the
pressure ranges of Yao and claim 19 are approximate and “close enough”
that an ordinary artisan would have expected them to yield substantially
similar results. Ans. 8 (citing Yao p. 4145, right co., last two lines)
(emphasis omitted); cf. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir.
1990) (claimed range of “more than 5% to about 25%” carbon monoxide
was obvious over prior art reference that disclosed an abutting range of
Appeal 2011-008122
Application 11/370,269

8
“about 1-5%” carbon monoxide). A preponderance of the evidence thus
supports the Examiner’s rejection of claim 19.
We have considered Appellant’s other arguments but find them
unpersuasive for the reasons stated in the Answer. No persuasive argument
or evidence having been brought forward by Appellant, we affirm the
rejection of claims 1-7 and 19-30.

CONCLUSION
We affirm the rejection of claims 1-7 and 19-30.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED

kmm