Ex Parte Shen et al

Patent Trial and Appeal Board

Jun 23, 2017

13016912 (P.T.A.B. Jun. 23, 2017)

United States Patent and Trademark Office
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.
13/016,912 01/28/2011 Cheng-Hui Shen 552772000300 5526
20872 7590 06/27/2017
MORRISON & FOERSTER LLP
425 MARKET STREET
SAN FRANCISCO, CA 94105-2482
EXAMINER
DAGENAIS, KRISTEN A
ART UNIT PAPER NUMBER
1717
NOTIFICATION DATE DELIVERY MODE
06/27/2017 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):
PatentDocket @ mofo. com
pair_mofo @ firsttofile. com
EOfficeSF @mofo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHENG-HUI SHEN
and ZHIMIN WAN
Appeal 2015-005764
Application 13/016,912
Technology Center 1700
Before ADRIENE LEPIANE HANLON, JAMES C. HOUSEL, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134 from an Examiner’s
decision twice rejecting claims 1—22.1 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM and designate our affirmance as new grounds of rejection
under 37 C.F.R. § 41.50(b).
Claim 1 is reproduced below from the Claims Appendix of the Appeal Brief
dated November 10, 2014 (“App. Br.”).
1 Claims 23—27, which are also pending, have been withdrawn from consideration.
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Application 13/016,912
1. A method for ion implanting of an actual work piece using an
ion implant beam of an ion implantation tool, the method comprising:
before the actual work piece is present in the ion implantation
tool, simulating the ion implantation of a virtual workpiece to
determine a selected relative velocity profile to be used in scanning
the actual work piece with the ion implant beam of the ion
implantation tool, wherein simulating comprises:
a) calculating a dose distribution across the virtual work
piece based on at least an implant beam profile and a relative
velocity profile between the ion implant beam and the virtual
work piece;
b) determining a new relative velocity profile between
the ion implant beam and the virtual work piece based on at
least the calculated dose distribution and the relative velocity
profile used in calculating the dose distribution;
c) calculating a new dose distribution across the virtual
work piece based on at least the implant beam profile and the
new relative velocity profile determined in step b);
d) if the new calculated dose distribution from step c)
does not meet one or more predetermined criteria, repeating
steps b) and c); and
e) storing the new relative velocity profile determined in
step b) as the selected relative velocity profile when the
calculated dose distribution across the virtual work piece meets
the one or more predetermined criteria;
after the new relative velocity profile is stored in e), causing the
actual work piece to be loaded in the ion implantation tool; and
implanting the loaded actual work piece by scanning the actual
work piece one or more times with the ion implant beam of the
implantation tool using the new relative velocity profile stored in e).
App. Br. 11 (emphasis added).
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The Appellants define a “virtual work piece” as a work piece “which
simulates or characterizes an actual work piece to be implanted by the ion implant
beam.” Spec. 17.
The claims on appeal stand rejected as follows:
(1) claims 9 and 13 under 35U.S.C. § 112, second paragraph, as being
indefinite;
(2) claims 1—3, 11—17, 21, and 22 under 35 U.S.C. § 103(a) as
unpatentable over Gupta et al.;2
(3) claims 4 and 5 under 35 U.S.C. § 103(a) as unpatentable over Gupta
in view of Renau et al. 854;3
(4) claims 6—10 under 35 U.S.C. § 103(a) as unpatentable over Gupta in
view of Berrian;4 and
(5) claims 18—20 under 35 U.S.C. § 103(a) as unpatentable over Gupta in
view of Renau et al. 3 79.5
B. DISCUSSION
1. Rejections under $ 103(a)
a. Claim 1
The Examiner finds Gupta discloses a method for improving ion
implantation throughput and dose uniformity comprising each of steps a) through
e) recited in claim 1 to determine a selected relative velocity profile. Ans. 3.6 In
particular, Gupta Figure 1 shows a flow chart illustrating the method comprising,
2 US 2008/0078953 Al, published April 3, 2008 (“Gupta”).
3 US 7,166,854 B2, issued January 23, 2007 (“Renau 854”).
4 US 6,677,599 B2, issued January 13, 2004 (“Berrian”).
5 US 2005/0258379 Al, published November 24, 2005 (“Renau 379”).
6 Examiner’s Answer dated March 12, 2015.
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inter alia, the steps of measuring a spot beam shape on a target wafer (step 102),
calculating a beam scan velocity profile (step 106), and calculating a wafer scan
velocity profile (step 108).7
In contrast to the method recited in claim 1, the Appellants argue that “the
calculations at steps 104 through 112 [in Gupta Figure 1] are performed after the
actual work piece is already present in the ion implantation tool from step 102.”
App. Br. 5. Nonetheless, the Examiner determines that it would have been obvious
to one of ordinary skill in the art “to perform the simulation of the work piece [via
the target wafer] prior to implanting or placing the [actual] work piece ... in the
reaction chamber, to ensure accurate starting implantation parameters using
inputted values for the calculations to achieve a certain dose distribution.” Ans. 3;
see also Ans. 10 (determining that it would have been obvious to perform a starting
simulation using Gupta’s method “prior to expending resources and thus providing
accurate starting implantation parameters”).8 Thus, in the Examiner’s proposed
modification, Gupta’s target wafer is a model wafer and subsequent ion
implantation of actual wafers is based on ion implantation data measured and
calculated using that model wafer. See Ans. 12.
The Examiner’s conclusion of obviousness is supported by the record.
Gupta discloses a system for improving ion implantation throughput and dose
uniformity that comprises a processor unit, such as a microprocessor,
microcontroller, personal computer, or other processing device. Gupta 1 57. The
7 The first component of a scan velocity profile is a beam scan velocity profile and
the second component of a scan velocity profile is a wafer scan velocity profile.
Gupta 111.
8 See In re Thompson, 545 F.2d 1290, 1294 (CCPA 1976) (economic factors alone
may motivate one of ordinary skill in the art to modify the prior art).
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system also comprises a beam/wafer scan controller that is coupled to an ion
implanter system and controls the scanning movement of a wafer and/or an ion
beam according to instructions received from the processor. Gupta 157. Gupta
discloses:
In operation, the processor unit. . . may cause the beam/wafer
scan controller ... to initiate a preliminary scan in the ion implanter
system . . ., and may receive ion beam measurements . . . via the
measurement interface .... The processor unit. . . may also receive
user inputs such as, for example, beam utilization, a threshold value
for evaluating beam profile, and uniformity criteria. The processor
unit. . . may then select a desired OSC [orthogonal scan
compensation] mode, calculate a beam scan velocity profile, and tune
a wafer scan velocity profile for dose/current uniformity.
Gupta 158 (reference numerals omitted).
Gupta discloses that “the technique for improving ion implantation
throughput and dose uniformity in accordance with the present disclosure as
described above typically involves the processing of input data and the generation
of output data to some extent.” Gupta 1 59. In an alternative embodiment, Gupta
discloses that “one or more processors operating in accordance with stored
instructions may implement the functions associated with uniformity tuning in
accordance with the present disclosure.” Gupta 159. In that alternative
embodiment, we find Gupta teaches that measurements and calculations relating to
a target wafer may be stored in a processor (i.e., stored instructions) and
subsequently used to ion implant “actual” wafers. Thus, based on the teachings in
Gupta, we conclude that it would have been obvious to one of ordinary skill in the
art to use the target wafer disclosed in Gupta as a model or virtual wafer9 to obtain
9 We note that the Appellants do not direct us to any definition of “virtual work
piece” that excludes Gupta’s target or model wafer in the modification proposed.
In their Specification the Appellants define “virtual work piece” as a work piece
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measurements and calculations prior to loading the actual work piece in the ion
implantation tool as recited in claim 1.
The Appellants also argue that
Gupta does not expressly disclose how the “desired ion dose
uniformity distribution” or “the resulting dose uniformity” are
determined. ([Gupta] 1 [0054].) In light of the teachings of step 102
in Gupta, a person of ordinary skill in the art would be motivated to
determine “the resulting dose uniformity” by directly measuring the
actual implant work piece, as taught in step 102, rather than
calculating it “across the virtual work piece,” as required by claim 1.
App. Br. 8 (emphasis added).
In step 102, Gupta discloses that a spot beam shape and beam current are
measured. A spot beam may be scanned across a target wafer to measure a current
profile and/or dose profile (i.e., an “ion beam profile”). Gupta 133; see also Gupta
Fig. 3 (showing current profile “I(x)”). Significantly, claim 1 does not exclude the
measurements disclosed in step 102. See Spec. 124 (disclosing that “[t]he implant
beam profile may or may not be measured from the ion implant beam of an ion
implantation tool”).
In Gupta’s step 106, a beam scan velocity profile is calculated to shape the
beam current profile I(x). Gupta 147. In step 108, the calculated beam scan
velocity profile is used to calculate a wafer scan velocity profile such that it
produces a desired dose uniformity. Gupta 1 52. In step 110, a determination is
made as to whether the resulting dose uniformity is acceptable. Gupta 1 53. Thus,
“which simulates or characterizes an actual work piece to be implanted by the ion
implant beam.” Spec. 17. We find that the target wafer in Gupta’s modified
method satisfies that definition.
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contrary to the Appellants’ arguments, dose uniformity is calculated based on the
ion beam profile measured in step 102.
Finally, the Appellants argue that
Gupta discloses that the “scan velocity profile may be dynamically
adjusted for at least one orientation of the work piece.” ([Gupta]
1 [0014].) Performing scan velocity profile adjustments
“dynamically” thus discloses that the calculations and adjustments are
performed while the actual work piece is being implanted in the ion
implantation tool.[10]
App. Br. 5.
The Appellants’ argument is not persuasive of reversible error. Gupta
discloses that “[a]t least one of the first component and the second component of
the scan velocity profile may be dynamically adjusted for at least one orientation of
the workpiece.” Gupta 114 (emphasis added). Thus, we find dynamic adjustment
is not a requirement in Gupta’s system. Moreover, we find that in Gupta’s
10 The Appellants argue that “in the Office Action dated April 12, 2013, the
Examiner concedes that ‘[t]here is simultaneous implantation taking place while
the calculations of Gupta, i.e. steps 106, 108, 110, 112, 114 and 116 are taking
place.’ (Office Action at page 12; emphasis added.).” App. Br. 5. A review of the
Official file of the instant Application reveals that the Office Action dated April
12, 2013, is only 10 pages long. In the Reply Brief, the Appellants argue that the
Examiner’s statement appears on page 12 of the Office Action dated October 23,
2013. Reply Brief dated May 12, 2015, at 4, n.5. Page 12 of that Office Action
states, in relevant part:
There is simultaneous implantation taking place while the calculations
of Gupta, i.e. steps 106, 108, 110, 112, 114 and 116 are taking place.
The calculation of the ion dose distribution is not of the actual
physical workpeice [sic, workpiece] being implanted, but of a model
of the workpiece within the calculations based on a variation of the
scan velocity profile value. This calculated model of the workpiece is
separate from the physical workpiece being simultaneously, and is
therefore considered the “virtual workpeice [sic, workpiece]” of the
applicant’s claim.
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modified method, data from any dynamic adjustment for a target or virtual wafer
would be stored in a processor and could be used to subsequently ion implant an
“actual” wafer. See Ans. 11.
For the reasons set forth above, the Examiner’s decision to reject claim 1
under § 103(a) based on Gupta is affirmed. Our affirmance, however, is based in
part on portions of Gupta that were not relied on by the Examiner. Therefore, we
designate our affirmance a new ground of rejection under 37 C.F.R. § 41.50(b).
With the exception of claim 19, the Appellants do not present arguments in
support of the separate patentability of any of claims 2—18 and 20-22. Therefore,
we also affirm the Examiner’s decision to reject claims 2—18 and 20—22 under
§ 103(a) and designate our affirmance a new ground of rejection under 37 C.F.R.
§ 41.50(b).
b. Claim 19
Claim 19 ultimately depends from claim 1 and recites that “when one or
more predetermined thresholds are exceeded, adjusting the ion implant beam,
obtaining a new implant beam profile, and starting step a) with the new implant
beam profile.” App. Br. 15.
The Examiner finds Gupta and Renau 379 “are silent on adjusting the ion
implant beam, obtaining a new profile, and starting the calculation with the new
implant beam profile after the thresholds are exceeded.” Ans. 8. The Examiner,
however, finds “this is an old and well-known method of closed loop control,
capable of breaking a loop and then re-starting the calculation so as to not interrupt
the process and have it work continuously.” Ans. 8.
The Appellants argue that “the Examiner improperly relied on common
knowledge as the principal evidence upon which the rejection was based.” App.
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Br. 9 (citing In re Zurko, 258 F.3d 1379 (Fed. Cir. 2001)11 and MPEP § 2144.03).
For that reason, the Appellants argue that the rejection of claim 19 cannot be
maintained. App. Br. 9.
We understand the Examiner to be taking official notice of the process of
closed loop control. According to MPEP § 2144.03(C) (8th ed., Rev. 9, Aug.
2012), “[t]o adequately traverse such a finding, an applicant must specifically point
out the supposed errors in the examiner’s action, which would include stating why
the noticed fact is not considered to be common knowledge or well-known in the
art” (emphasis added). In this case, the Appellants do not explain, in any detail,
11 In Zurko, the Court stated:
[T]he deficiencies of the cited references cannot be remedied by the
Board’s general conclusions about what is “basic knowledge” or
“common sense” to one of ordinary skill in the art. ... As an
administrative tribunal, the Board clearly has expertise in the subject
matter over which it exercises jurisdiction. This expertise may
provide sufficient support for conclusions as to peripheral issues.
With respect to core factual findings in a determination of
patentability, however, the Board cannot simply reach conclusions
based on its own understanding or experience—or on its assessment
of what would be basic knowledge or common sense. Rather, the
Board must point to some concrete evidence in the record in support
of these findings. To hold otherwise would render the process of
appellate review for substantial evidence on the record a meaningless
exercise.
258 F.3d at 1386 (footnote omitted). In this case, the Board in its capacity as an
administrative tribunal did not find the subject matter of claim 19 “is an old and
well-known method of closed loop control.” Ans. 8. Thus, the facts of Zurko are
inapposite to the facts of this case. But see In re Bozek, 416 F.2d 1385, 1390
(CCPA 1969) (having established that certain knowledge was in the art, the
examiner could then properly rely on a conclusion of obviousness “from common
knowledge and common sense of the person of ordinary skill in the art without any
specific hint or suggestion in a particular reference” (quoting In re Mapelsden, 329
F.2d 321 (CCPA 1964))).
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why the Examiner’s noticed fact is not considered to be common knowledge or
well-known in the art, and thus is erroneous.12 See Ans. 13 (“[a] mere statement or
argument that the . . . Office’s reliance on common knowledge is unsupported by
documentary evidence will not be considered substantively adequate to rebut the
rejection”); see also 37 C.F.R. § 1.111(b) (2014). For that reason, the Examiner’s
decision to reject claim 19 under § 103(a) is affirmed. Because claim 19 depends
from claim 1, we designate our affirmance a new ground of rejection under 37
C.F.R. § 41.50(b).
2. Rejection under $ 112, second paragraph
The Examiner concludes that it is unclear whether “the determined rotation
velocity profile” recited in claim 9 refers to the first “rotation velocity profile” or
the “new rotation velocity profile” recited in claim 9. Ans. 2. Similarly, the
Examiner concludes that it is unclear whether “the determined rotation profile”
recited in claim 13 refers to the first “rotation profile” or the “new rotation profile”
recited in claim 13. Ans. 2.
Claim 9 recites, in relevant part, “determining the rotation velocity profile
used in calculating the dose distribution in step a)” and “determining a new
rotation velocity profile in step b) based on at least the calculated dose distribution
and the determined rotation velocity profde used in calculating the dose
distribution.” App. Br. 13 (emphasis added). Claim 13 similarly recites, in
12 In the Office Action dated October 23, 2013, at 8, claim 19 was rejected under
§ 103(a) based on the same rationale presented in the Office Action dated April 9,
2014, and the Examiner’s Answer. In response to the Office Action dated October
23, 2013, the Appellants did not argue that the Examiner’s rationale was erroneous.
Rather, the Appellants argued that “[cjlaims 18—20 depend from claim 1 and are
allowable over Gupta for at least the same reasons as claim 1.”) Amendment dated
March 24, 2014, at 14.
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relevant part, “determining the rotation profile used in calculating the dose
distribution in step a)” and “determining a new rotation profile in step b) based on
at least the calculated dose distribution and the determined rotation profile used in
calculating the dose distribution.” App. Br. 13 (emphasis added).
As to claim 9, the Appellants argue that “the two rotation velocity profiles
[i.e., the rotation velocity profile and the new rotation velocity profile] are clearly
distinguished by the modifier ‘new.’” App. Br. 3^4. The Appellants argue that
one of ordinary skill in the art “would reasonably ascertain that ‘the determined
rotation velocity profile’ would refer to the antecedent term ‘rotation velocity
profile’ whereas ‘the determined new rotation velocity profile’ would refer to the
antecedent term ‘new rotation velocity profile.’” App. Br. 4. The Appellants
argue that “claim 13 is definite for reasons similar to those presented above with
respect to claim 9.” App. Br. 4.
The Appellants’ arguments are persuasive of reversible error. It is not
readily apparent on this record how “a new rotation velocity profile” or “a new
rotation profile” could be determined based on itself. Rather, it would appear that
“a new rotation velocity profile” and “a new rotation profile” would be determined
based on a previous rotation velocity profile (i.e., the first “rotation velocity
profile” recited in claim 9) and a previous rotation profile (i.e., the first “rotation
profile” recited in claim 13), respectively. The Appellants’ disclosure supports that
interpretation. See, e.g., Spec. 125. Thus, on this record, it is clear that “the
determined rotation velocity profile” refers to the first “rotation velocity profile”
recited in claim 9, and it is clear that “the determined rotational profile” refers to
the first “rotation profile” recited in claim 13.” App. Br. 13.
The § 112, second paragraph, rejection of claims 9 and 13 is not sustained.
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C. DECISION
The Examiner’s decision to reject claims 9 and 13 under 35 U.S.C. § 112,
second paragraph, as being indefinite is reversed.
The Examiner’s decision to reject claims 1—3, 11—17, 21, and 22 under 35
U.S.C. § 103(a) as unpatentable over Gupta is affirmed and designated a new
ground of rejection under 37 C.F.R. § 41.50(b).
The Examiner’s decision to reject claims 4 and 5 under 35 U.S.C. § 103(a)
as unpatentable over Gupta in view of Renau 854 is affirmed and designated a new
ground of rejection under 37 C.F.R. § 41.50(b).
The Examiner’s decision to reject claims 6—10 under 35 U.S.C. § 103(a) as
unpatentable over Gupta in view of Berrian is affirmed and designated a new
ground of rejection under 37 C.F.R. § 41.50(b).
The Examiner’s decision to reject claims 18—20 under 35 U.S.C. § 103(a) as
unpatentable over Gupta in view of Renau 379 is affirmed and designated a new
ground of rejection under 37 C.F.R. § 41.50(b).
This decision contains new grounds of rejection under 37 C.F.R. § 41.50(b).
37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b)
also provides that the Appellants, within two months from the date of this
Decision, must exercise one of the following two options with respect to the new
grounds of rejection to avoid termination of the appeal:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new Evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to
the examiner. . . .
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(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record. The request
for rehearing must address any new ground of rejection and
state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
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; 37 C.F.R, $ 41.50(b)
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