Ex Parte Qian et alDownload PDFPatent Trial and Appeal BoardAug 13, 201814261893 (P.T.A.B. Aug. 13, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/261,893 04/25/2014 61611 7590 08/15/2018 ROHM AND HAAS ELECTRONIC MATERIALS CMP HOLDINGS, INC. c/o E. I. du Pont de Nemours and Company P. 0. Box 2915 Wilmington, DE 19805 Bainian Qian 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. 76218-US-NP 6738 EXAMINER CHRISTIE, ROSS J ART UNIT PAPER NUMBER 1731 NOTIFICATION DATE DELIVERY MODE 08/15/2018 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): PTO-Legal.PRC@dupont.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BAINIAN QIAN and MARTY W. DEGROOT Appeal2017-009354 Application 14/261,893 Technology Center 1700 Before LINDA M. GAUDETTE, DONNA M. PRAISS, and BRIAND. RANGE, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1---6 and 11-16. App. Br. 9; Final Act. 3-15. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In this Decision, we refer to the Specification filed April 25, 2014 ("Spec."), the Final Office Action entered February 26, 2016 ("Final Act."), the Appeal Brief filed July 19, 2016 ("App. Br."), and the Examiner's Answer entered December 19, 2016 ("Ans."). 2 The Appellants are the Applicants, Rohm and Haas Electronic Material CMP Holdings, Inc. and Dow Global Technologies LLC, who are identified as the real parties in interest and wholly owned subsidiaries of The Dow Chemical Company. App. Br. 4. Appeal2017-009354 Application 14/261,893 The invention relates to chemical mechanical polishing pads. Spec. ,r 1. Claims 1 and 5 are illustrative ( disputed limitations italicized): 1. A chemical mechanical polishing pad, comprising: a polishing layer having a polishing surface, wherein the polishing layer comprises a reaction product of ingredients, compnsmg: an isocyanate terminated urethane prepolymer having 8.5 to 9.5 wt% unreacted NCO groups; and, a curative system, comprising: 10 to 60 wt% of a high molecular weight polyol curative, wherein the high molecular weight polyol curative has a number average molecular weight, MN, of 2,500 to 100,000; and wherein the high molecular weight polyol curative has an average of 5 to 7 hydroxyl groups per molecule; and, 40 to 90 wt% of a difunctional curative. 5. The chemical mechanical polishing pad of claim 4, wherein the isocyanate terminated urethane prepolymer has 8.95 to 9.25 [wt%] unreacted NCO groups. App. Br. 16 (Claims Appendix). Claim 4 depends from claim 1 and further recites values for the density, hardness, elongation to break, G' 30/90 ratio, tensile modulus, wet cut rate, and a 300 mm TEOS removal rate to Shore D hardness ratio of the recited polishing layer. The Examiner maintains the following rejections under 35 U.S.C. § 103: 2 Appeal2017-009354 Application 14/261,893 1. Claims 1--4, 6, 11-14, and 16 over Kulp I3 in view ofFukuda4 and Hutzler; 5 and 2. Claims 5 and 15 over Kulp I in view of Fukuda and Hutzler and further in view of Kulp II. 6 Ans. 2, 11; Final Act. 3, 12-13. OPINION We review the appealed rejections for error based upon the issues identified by Appellants and in light of the arguments and evidence produced thereon. See Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("it has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections")). After review of the arguments and evidence presented by both Appellants and the Examiner, we are not persuaded that the Examiner erred in rejecting claims 1---6 and 11-16 for the reasons stated in the Final Office Action and the Answer. We add the following primarily for emphasis. Rejection 1: Claim 1 The Examiner determines that claims 1--4, 6, 11-14, and 16 would have been obvious to one of ordinary skill in the art at the time of the invention for the reasons stated on pages 3-12 of the Final Office Action. Appellants argue the claims as a group (App. Br. 10-14). Accordingly, claims 2--4, 6, 11-14, and 16 will stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv). 3 Kulp, US 2005/0171225 Al, published Aug. 4, 2005 ("Kulp I"). 4 Fukuda et al., US 2010/0029185 Al, published Feb. 4, 2010 ("Fukuda"). 5 Hutzler et al., US 3,577,257, issued May 4, 1971 ("Hutzler"). 6 Kulp et al., US 2010/0035529 Al, pub. Feb. 11, 2010 ("Kulp II"). 3 Appeal2017-009354 Application 14/261,893 Appellants contend that the Examiner erred in rejecting claim 1 over the combination of Kulp I, Fukuda, and Hutzler because ( 1) Kulp I does not disclose a curative that is a "high molecular weight polyol curative" as required by the claim, (2) Hutzler does not remedy the deficiency of Kulp I, (3) there is no teaching or suggestion to tum to the polyurethane floor coating art of Hutzler for selecting formulations for use in chemical mechanical polishing pads, (4) there is no teaching to indicate which parameters are critical in the selection of any particular curative polyols disclosed in Hutzler for use in the manufacture of a chemical mechanical polishing pad, and ( 5) Fukuda is directed to polishing layer compositions having an open cell structure (i.e., interconnected cells) rather than polishing layers having closed cell structures as described in Kulp, therefore there is no reasoned basis to modify the teachings of either Kulp I or Hutzler with Fukuda for the amount of high molecular weight polyol curative and the amount of difunctional curative present. App. Br. 10-12. Appellants additionally argue that Fukuda teaches away from the use of a high molecular weight polyol having 5 or more hydroxyl groups per molecule because it discloses that "[ w ]hen the number of functional groups is 5 or more, the degree of crosslinking of the thermosetting polyurethane foam becomes so high that the foam becomes too brittle and the surface of a material to be polishing is easily scratched." Id. at 13 (quoting Fukuda ,r 68). Appellants contend that, based on the prior art disclosures as a whole, there is no "credible reason" for modifying the teachings of Kulp I, Fukuda, and Hutzler to arrive at the claimed invention. Id. The Examiner responds that both Hutzler and Kulp I are drawn to cast polyurethane compositions, therefore a person having ordinary skill in the 4 Appeal2017-009354 Application 14/261,893 art at the time of the invention considering Appellants' problem of particular percentages of specific constituents to make a successful, functioning polyurethane composition would discover Hutzler's teachings. Ans. 15-16; see also Final Act. 5---6. The Examiner further responds that Hutzler explicitly teaches that brittleness and hardness are generally increased as the amount of diisocyanate is increased or the molecular weight of the polyol is reduced, thus Hutzler teaches that the molecular weight of the curative polyol is a result-effective variable in the fabrication of a polyurethane composition. Id. at 1 7. The Examiner additionally finds that Hutzler provides guidance regarding specific aliphatic alcohols such as polyether glycols of up to 5,000 or more molecular weight for use as the curative pol yo 1, which falls within Appellants' claimed range, and preferred pol yo ls having at least two hydroxyl groups sufficiently supports the claimed hydroxyl groups per molecule range. Id. ( citing Hutzler 8:7-9); see also id. at 20 (citing Hutzler 7:8-13, 8:7-9); Final Act. 5. Regarding Fukuda being drawn to polishing layer compositions suitable for polishing layers having an open cell structure, the Examiner quotes paragraph 12 of Kulp I as evidence that Kulp I discloses multiple embodiments including a mechanical frothing method just like the mechanical frothing process explicitly taught by Fukuda to fabricate a polyurethane composition having an open cell structure. Ans. 18-20. The Examiner further responds that Fukuda's second invention is relied upon in the disclosure of Fukuda rather than Fukuda's first invention discussed in paragraph 21, which Appellants cite in support of its teaching away argument. Ans. 22. 5 Appeal2017-009354 Application 14/261,893 Appellants' arguments are not persuasive of error because Appellants do not adequately rebut the Examiner's findings (Ans. 17, 20; Final Act. 5) that Hutzler does provide guidance regarding specific aliphatic alcohols of up to 5,000 or more molecular weight for use as the curative polyol and discloses preferred polyols having at least two hydroxyl groups. Nor do Appellants adequately rebut the Examiner's findings (Ans. 17) that Hutzler teaches the molecular weight of the curative polyol is a result-effective variable and that brittleness and hardness are increased as the molecular weight of the polyol is reduced. Appellants also do not adequately rebut the Examiner's finding (Ans. 18-19) that Fukuda and Kulp I disclose the same mechanical frothing method for forming polishing layers and, therefore, the same open cell structure. Appellants' assertions in the Appeal Brief that the combination of Hutzler with Kulp I is improper because the references are directed to different art and one skilled in the art of chemical mechanical polishing pads would not look to the teachings of Hutzler regarding polyurethane overcoat formulations are not supported by the preponderance of the evidence cited in this appeal. The Examiner's finding that both Hutzler and Kulp I are drawn to cast polyurethane compositions and that the problem of specific constituents making up a functioning polyurethane composition would lead the skilled artisan to the compositions of Hutzler and their properties are supported by the record and not sufficiently rebutted by Appellants. Ans. 15-16; Final Act. 6; Hutzler 10:43-75; Kulp I (57), ,r 2. Regarding the combination of the teachings of Kulp I with those of Hutzler and Fukuda, we find the Examiner's reason for modifying Kulp I with the teachings of Hutzler to be supported by Hutzler' s disclosure of 6 Appeal2017-009354 Application 14/261,893 specific functioning polyurethane compositions and that the composition is useful for curing cast polyurethane compositions, therefore, the combination is not based on improper hindsight. Final Act. 6; Ans. 21. Appellants' argument (App. Br. 12-13) against the combination of the references based on the exemplary application of Hutzler's polyurethane composition as a flooring material is also unpersuasive because "[a] person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,421 (2007). We consider the cited prior art as representative of the level of ordinary skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) ("[T]he absence of specific findings on the level of skill in the art does not give rise to reversible error 'where the prior art itself reflects an appropriate level and a need for testimony is not shown"') (quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985)). Likewise, the Examiner's finding (Final Act. 6-7; Ans. 22) that a skilled artisan would further modify the combination with the teachings of Fukuda regarding the amount of high-molecular weight polyol curative and the amount of difunctional curative based on the "Second Invention" in Fukuda's disclosure is also supported by the record. Fukuda's disclosure in paragraph 21 concerning a "First Invention" where the foam is said to become too brittle when the number of functional groups is 5 or more does not amount to a teaching away from the method of claim 1 because the cited disclosure is a separate embodiment from the embodiment on which the Examiner's rejection is based. See, e.g., In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) ( explaining "[t]he prior art's mere disclosure of more than one alternative does not constitute a teaching away from any of these 7 Appeal2017-009354 Application 14/261,893 alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed"). Moreover, paragraph 32 of Fukuda concerning the "Second Invention" explicitly states that the polyurethane is too brittle when the number of functional groups is greater than 8. As such, we find unpersuasive Appellants' arguments that the combination of prior art references is based on hindsight alone and that Fukuda teaches away from the combination. In sum, we are not persuaded by Appellants that the Examiner erred in rejecting claim 1 over the combination of Kulp I, Fukuda, and Hutzler. Rejection 2: Claim 5 The Examiner determines that claims 5 and 15 would have been obvious to one of ordinary skill in the art at the time of the invention for the reasons stated on pages 12-15 of the Final Office Action. Appellants argue the claims as a group (App. Br. 14--15). Accordingly, claim 15 will stand or fall with claim 5. 37 C.F.R. § 4I.37(c)(l)(iv). Regarding claim 5, which indirectly depends from claim 1, Appellants additionally contend that the Examiner erred because modifying the teachings of Kulp I would defeat the explicit purpose of the Kulp I formulations in that Kulp I provides controlling the unreacted NCO group concentration at between 4.5 and 8.7 is critical and the Examiner's proposed modifications would render Kulp I's formulations unsatisfactory for their intended use in the manufacture of polishing layers. App. Br. 14--15. The Examiner does not dispute the teachings of Kulp I, but, instead, finds that Kulp II recognizes the known performance issue of polishing pads and explicitly teaches how to successfully increase the weight percent of unreacted NCO while avoiding the defective performance of the polishing 8 Appeal2017-009354 Application 14/261,893 pad previously associated with such weight percent unreacted NCO amounts that Kulp I considered too high. Ans. 25 ( citing Kulp I ,r 11; Kulp II ,r,r 13, 17). Appellants' arguments are not persuasive of error in the rejection of claim 5 because Appellants argue the Kulp I reference individually and do not address the rejection which is over the combination of not only Kulp I with Hutzler and Fukuda, but also Kulp II. Appellants do not rebut the Examiner's findings regarding Kulp II, which findings are supported by the cited record in this appeal. Accordingly, we affirm the Examiner's rejection of claim 5. CONCLUSION In sum, we affirm the Examiner's rejections of claims 1---6 and 11-16 as obvious over the cited prior art references. DECISION We affirm the Examiner's decision to reject claims 1---6 and 11-16 as obvious under 35 U.S.C. § 103. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l). AFFIRMED 9 Copy with citationCopy as parenthetical citation