Ex Parte Ping et al

Patent Trial and Appeal BoardNov 26, 2012

10046497 (P.T.A.B. Nov. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ER-XUAN PING and JEFFREY A. MCKEE ____________ Appeal 2009-013014 Application 10/046,497 Technology Center 2800 ____________ Before MARC S. HOFF, CARLA M. KRIVAK, and ELENI MANTIS MERCADER, Administrative Patent Judges. MANTIS MERCADER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-013014 Application 10/046,497 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 143-148, 167-169, 173-175, 182-189, 197, and 227-231. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION Appellants’ claimed invention “relates to elevated structures such as transistors and raised source/drain regions formed on a semiconductor substrate by controlled growth of epitaxial layers, and methods for forming such structures.” Spec. 2:2-4. Independent claim 143, reproduced below, is representative of the subject matter on appeal. 143. A semiconductor structure, comprising: at least two overlying faceted layers of single crystal epitaxial silicon, each epitaxial silicon layer comprising: a faceted surface comprising a plurality of facets, and sidewalls with insulative material thereover, and an uppermost faceted layer of the at least two overlying layers of epitaxial silicon having a layer of an insulative material over the faceted surface of said uppermost layer of epitaxial silicon; wherein the structure is situated on a substrate in a vertical orientation. REFERENCES and REJECTIONS The Examiner rejected claims 143, 144, 147, 167, 169, 173, 175, 182- 189, 197, and 227-231 under 35 U.S.C. § 102(b) as being anticipated by or, Appeal 2009-013014 Application 10/046,497 3 in the alternative, under 35 U.S.C. § 103(a) as obvious over Matsumoto (JP 401286361A (published November 17, 1989)). The Examiner rejected claims 145, 146, 148, 168, and 174 under 35 U.S.C. § 103(a) as being unpatentable over Matsumoto in view of Sharma (U.S. Patent No. 5,483,094 (filed September 26, 1994) (issued January 9, 1996)). ISSUE The issue is whether the Examiner erred in finding that Matsumoto teaches “overlying layers of epitaxial silicon” as recited in independent claim 143. ANALYSIS Appellants argue that Matsumoto does not teach or suggest “two overlying layers of epitaxial silicon” as recited in independent claim 143 (App. Br. 11). More specifically, Appellants argue that Matsumoto does not anticipate or make obvious the pending claims because Matsumoto does not disclose two distinct epitaxial (SEG) silicon layers (App. Br. 11). Appellants contend that Matsumoto’s Abstract clearly describes a single layer SEG as layer 4 in Figure 3(b) (and in Figure 1) (App. Br. 12). Appellants further contend that the Abstract also states that if boron is implanted into layer 4 a doped uniform base 6 is formed to the depth shown in Figure 3(b) (and Figure 1) (App. Br. 12). Thus, Appellants assert that region 6 is not a second SEG layer, but, rather, a portion of SEG layer 4 that is formed by doping (App. Br. 12). Furthermore, Appellants state that the “line” within the SEG layer indicates the “depth” of the impurity that is Appeal 2009-013014 Application 10/046,497 4 introduced into layer 4 to form the boron-doped region 6 (App. Br. 12). Appellants further assert that the claimed term “epitaxial” layer means a single crystal film grown upon a single crystal substrate in the course of epitaxial deposition, and that the presence of an upper dopant region in an epitaxial layer does not create two epitaxial layers (Reply Br. 2). In related Appeal No. 2009-0237 (Application 10/379,494), we found that “Matsumoto teaches forming an SEG layer region 4 wherein ‘an impurity introduced layer’ 6 is formed uniformly to the depth direction ‘inside the selective epitaxial layer’ 4 (Abstract Fig. 3(b)) (emphasis added)” (Opinion 6). Thus, we found that layer 6 is an additional “doped” layer, as it is characterized as “an impurity introduced layer” (Opinion 6). This introduced layer 6 was formed originally as the upper region of SEG epitaxial layer 4, thereby constituting a “doped” SEG layer 6 (Opinion 6). We noted that Appellants’ definition of an “epitaxial” layer, meaning a single crystal film grown upon a single crystal substrate in the course of epitaxial deposition, does not contradict the Examiner’s interpretation because layer 6 was originally grown (i.e., as the top part of SEG layer 4) upon a single crystal substrate, and thereafter treated with boron so as to become a “doped” SEG layer 6 (Opinion 6-7). Our earlier decision of Appeal No. 2009-0237 is binding on this application and therefore has a preclusive effect regarding those issues. The Board’s decision becomes the “law of the case” in that it is controlling on the application under appeal and later related applications. See MPEP § 706.07(h)(XI)(A). Accordingly, we affirm the Examiner’s rejection of claims 143, 144, 147, 167, 169, 173, 175, 182-189, 197, and 227-231 under Appeal 2009-013014 Application 10/046,497 5 35 U.S.C. § 102(b) as being anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over Matsumoto. We also affirm the Examiner’s rejection of claims 145, 146, 148, 168, and 174 under 35 U.S.C. § 103(a) as being unpatentable over Matsumoto in view of Sharma for the same reason. We note that Appellants’ argument on pages 14-15 of the Appeal Brief is directed to the Examiner’s requirement for Election/Restriction. This is a petitionable matter and not an appealable matter. See MPEP §§ 1002, 1201. Accordingly, we will not review that issue. CONCLUSION The Examiner did not err in finding that Matsumoto teaches “overlying layers of epitaxial silicon” as recited in independent claim 143. DECISION The Examiner’s decision rejecting claims 143-148, 167-169, 173-175, 182-189, 197, and 227-231 is affirmed. 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)(iv). AFFIRMED babc