Ex Parte Spohn et al

Patent Trial and Appeal BoardJan 29, 2013

12014228 (P.T.A.B. Jan. 29, 2013)

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. 12/014,228 01/15/2008 Ronald F. Spohn 21453-R2 1194 27182 7590 01/29/2013 PRAXAIR, INC. LAW DEPARTMENT - M1-04 39 OLD RIDGEBURY ROAD DANBURY, CT 06810-5113 EXAMINER NAGPAUL, JYOTI ART UNIT PAPER NUMBER 1773 MAIL DATE DELIVERY MODE 01/29/2013 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 AND TRIAL APPEAL BOARD ____________ Ex parte RONALD F. SPOHN and DAVID WALTER PETERS ____________ Appeal 2012-001269 Application 12/014,228 Technology Center 1700 ____________ Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and GRACE KARAFFA OBERMANN, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-001269 Application 12/014,228 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. Â§ 134 from a final rejection of claims 1 through 30. We have jurisdiction under 35 U.S.C. Â§ 6. Appellantsâ€™ invention is directed to a bubbler vapor phase reagent dispensing apparatus and method of using the apparatus to deliver a vapor phase reagent to a deposition chamber. App. Br. 7-9. Claim 1 is illustrative of the subject matter on appeal and is reproduced below: 1. A vapor phase reagent dispensing apparatus comprising: a vessel which comprises a removable top wall member, a sidewall member and a bottom wall member configured to form an internal vessel compartment to hold a source chemical up to a fill level and to additionally define an inner gas volume above the fill level; said sidewall member having a protuberance that extends into the internal vessel compartment adjacent to the top wall member; said top wall member and said sidewall member having opposing flat surfaces, wherein the opposing flat surfaces are optionally in contact with one another; fastening means for securing said top wall member to said sidewall member through the opposing flat surfaces that are optionally in contact with one another; said top wall member and said protuberance having opposing flat surfaces, wherein the opposing flat surfaces are not in contact with one another and at least a portion of the opposing flat surfaces are hardened; a metal seal aligned and in contact with the hardened opposing flat surfaces of said top wall member and said protuberance; said bottom wall member having a main floor surface containing a sump cavity therein extending downwardly from the main floor surface, the Appeal 2012-001269 Application 12/014,228 3 sump cavity being bounded at its lower end by a sub-floor surface, with at least a portion of the sump cavity being centrally located on the bottom wall member and at least a portion of the sump cavity being non-centrally located on the bottom wall member; a temperature sensor extending from an upper end exterior of the vessel through a centrally located portion of the top wall member and generally vertically downwardly through the inner gas volume into the source chemical to a lower end of that portion of the sump cavity centrally located on the bottom wall member, with the lower end of the temperature sensor being located in non-interfering proximity to the sub-floor surface of the sump cavity; a source chemical level sensor extending from an upper end exterior of the vessel through a non-centrally located portion of the top wall member and generally vertically downwardly through the inner gas volume into the source chemical to a lower end of that portion of the sump cavity non- centrally located on the bottom wall member, with the lower end of the source chemical level sensor being located in noninterfering proximity to the sub-floor surface of the sump cavity; the temperature sensor being operatively arranged in the sump cavity to determine the temperature of source chemical in the vessel, the source chemical level sensor being operatively arranged in the sump cavity to determine the level of source chemical in the vessel, the temperature sensor and source chemical level sensor being located in non-interfering proximity to each other in the sump cavity, with the lower end of the temperature sensor being located at the same or closer proximity to the subfloor surface of the sump cavity in relation to the lower end of the source chemical level sensor, and the temperature sensor and source chemical level sensor being in source chemical flow communication in the sump cavity; and a non-centrally located portion of the top wall member having a carrier gas feed inlet opening comprising a bubbler tube that extends through the inner gas volume into the source chemical and through which said carrier gas can be bubbled into the source chemical to cause at least a portion of source chemical vapor to become entrained in said carrier gas to produce a flow of vapor phase reagent to said inner gas volume above the fill level, said bubbler tube having an inlet end adjacent to the top wall member and an Appeal 2012-001269 Application 12/014,228 4 outlet end adjacent to the bottom wall member; and a non-centrally located portion of the top wall member having a vapor phase reagent outlet opening through which said vapor phase reagent can be dispensed from said apparatus; wherein said hardened opposing flat surfaces of said top wall member and said protuberance have a hardness greater than the hardness of said metal seal. Appellants, App. Br. 13, request review of the following rejections from the Examinerâ€™s final office action:1 Claims 1-30 stand rejected under the nonstatutory obviousness-type double patenting rejection as unpatentable over claims 1-25 of copending Application No. 12/014,270. Claims 1-30 stand rejected under the nonstatutory obviousness-type double patenting rejection as unpatentable over claims 1-25 of copending Application No. 12/014,2822. Claims 1-30 stand rejected under the nonstatutory obviousness-type double patenting rejection as unpatentable over claims 1-30 of copending Application No. 12/014,237. 1 The Examiner withdrew the rejections under the nonstatutory obviousness- type double patenting as unpatentable over the claims of copending Application No. 12/014,194 and copending Application No. 12/014, 248 (Ans. 4). 2 Co-pending Application 12/014,282 issued as U.S. Patent No. 7,959,994 on June 14, 2011. Therefore, our discussion of this rejection will focus on the claims in the U.S. Patent. Appeal 2012-001269 Application 12/014,228 5 OPINION The non-statutory obviousness-type double patenting rejection based on copending Application No. 12/014,270 Appellants have not contested this rejection. App. Br. 17. Instead, Appellants offer to make a determination of the need to file a terminal disclaimer upon allowance of the claims of the instant application. Id. Appellants do not cite any legal authority for the proposition that the mere offer to file a terminal disclaimer overcomes a rejection based on the judicially created doctrine of obviousness-type double patenting. Therefore, we affirm this rejection for the reasons given by the Examiner. Ans. 6-9, 18- 19. The non-statutory obviousness-type double patenting rejections based on copending Applications 12/014,282 and 12/014,237 The dispositive issue on appeal for these obvious-type double patenting rejections is: Did the Examiner err in determining that Appellantsâ€™ claims 1-30 directed to a vapor phase reagent dispensing apparatus having a bubbler tube are not patentably distinct from the apparatuses of claims 1-25 of copending Application No. 12/014,282 and of claims 1-30 of copending Application No. 12/014,237? 3, 4 3 We will limit our discussion to independent claim 1 since Appellants have not argued any of the claims separately. 4 Appellants have limited their arguments to the tube structure as the distinguishing feature between the claimed apparatus and the apparatuses of the copending Applications. Appellants have not argued the other structural limitations of the claimed apparatus. Appeal 2012-001269 Application 12/014,228 6 We refer to the Examinerâ€™s Answer for a statement of the Examinerâ€™s rejection (Ans. 9-18). Appellantsâ€™ claimed invention is directed to a bubbler vapor phase reagent dispensing apparatus. Appellants argue the claims for both copending Applications 12/014,282 and 12/014, 237 are directed to a dip tube liquid phase reagent dispensing system. App. Br. 18-20. Appellants additionally argue that the copending Applications teach away from the claimed invention by only disclosing a dip tube liquid phase reagent dispensing apparatus. Id. We are unpersuaded by Appellantsâ€™ arguments. As correctly noted by the Examiner, the devices of Appellantsâ€™ and the copending Applicationsâ€™ include structurally similar elements (bubbler tube vs. dip tube) that differ only in the material flowing through the tube. Ans. 19-21. While Appellants argue that the claimed bubbler system and the copending Applicationsâ€™ dip tube systems are completely different from one another (App. Br. 18, 20), Appellants have not shown that the claimed apparatuses of the copending Applications are structurally different from that claimed apparatus. It is well settled that language in an apparatus claim directed to the function, operation, intent-of-use, and materials upon which these apparatus components work, that does not structurally limit the apparatus components or patentably differentiate the claimed apparatus from an otherwise identical prior art apparatus, will not support patentability. See, e.g., In re Rishoi, 197 F.2d 342, 344-45 (CCPA 1952); In re Otto, 312 F.2d 937, 940 (CCPA 1963); In re Ludtke, 441 F.2d 660, 663-64 (CCPA 1971); In re Yanush, 477 F.2d 958, 959 (CCPA 1973). Appeal 2012-001269 Application 12/014,228 7 Accordingly, we sustain the rejections of claims 1-30 under the nonstatutory obviousness-type double patenting rejections as unpatentable over claims 1-25 of copending Application No. 12/014,282 and of claims 1- 30 of copending Application No. 12/014,237 for the reasons given above and presented by the Examiner. ORDER The rejection of claims 1-30 based on the ground of non-statutory obvious-type double patenting over claims 1-25 of copending Application No. 12/014,270 is affirmed. The rejection of claims 1-30 based on the ground of non-statutory obvious-type double patenting over claims 1-25 of copending Application No. 12/014,282 is affirmed. The rejection of claims 1-30 based on the ground of non-statutory obvious-type double patenting over claims 1-30 of copending Application No. 12/014,237 is affirmed. TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(1). AFFIRMED bar