Ex Parte Tabuchi et al

Patent Trial and Appeal BoardDec 30, 2014

11046273 (P.T.A.B. Dec. 30, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte TOSHIHIRO TABUCHI, KOUICHI ISHIDA, HIROYUKI MIZUKAMI, and MASAYUKI TAKASHIRI __________ Appeal 2013-000686 Application 11/046,273 Technology Center 1700 ____________ Before PETER F. KRATZ, MARK NAGUMO, and MICHAEL P. COLAIANNI, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 the final rejection of claims 1-4, 7, 9, 12, 14, 17, 18, and 20-23. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). Appeal 2013-000686 Application 11/046,273 2 We AFFIRM. Appellants’ invention is directed to a surface treatment apparatus appropriate for forming a film on a substrate such as a crystalline thin film of high quality and high speed (Spec. 1). Claim 1 is illustrative: 1. A surface treatment apparatus for making raw material gas plasma by generating plasma, the apparatus comprising: an anode electrode, and a cathode electrode, and a plasma generator comprising the anode electrode and the cathode electrode, wherein the anode electrode and the cathode electrode are opposed to each other, the anode attached to a casing, said casing including: a plasma generation chamber having said plasma generator and the region between the anode electrode and the cathode electrode, and a substrate treatment chamber having a substrate support table, the substrate treatment chamber separated from the plasma generation chamber by the anode electrode, the substrate support table having a potential applying device for adjusting a potential of a process plasma, said substrate treatment chamber and said plasma generation chamber connected through one or more plasma nozzles formed in the anode electrode, at least one of said plasma nozzles defining a hollow discharge generation area, Appeal 2013-000686 Application 11/046,273 3 a raw material gas inlet being placed in a region between the anode electrode and the cathode electrode, and raw material gas provided to the region through the raw material gas inlet, wherein said raw material gas provided through said raw material gas inlet is converted into plasma in said plasma generation chamber by said plasma generator, the plasma being passed through said hollow discharge generation area, so as to give plasma treatment to a surface of a substrate placed on the substrate support table. Appellants appeal the following rejections: 1. Claims 1, 3, 7, 12 and 23 are rejected under 35 U.S.C. § 103(a), as being unpatentable over Sakuragi (JP 11-293469 published October 26, 1999 as translated) in view of Maher (US 5,248,371 issued September 28, 1993). 2. Claims 2, 14, 17, 18, and 21 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Sakuragi in view of Maher and Korzec (“Multi-jet Hollow Cathode Discharge for Remote Polymer Deposition”, Surface and Coating Technology 93(1997) 128-133). 3. Claims 4, 9, and 20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Sakuragi in view of Maher, and Shinroku (US 3,756,511 issued September 4, 1973). 4. Claim 22 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Sakuragi in view of Maher and Anders (“The Working Principle of the Hollow-anode Plasma Source” Plasma Sources Sci. Technology 4(1995) 571-575). Appellants’ arguments focus on claim 1 only (App. Br. 3-7). Appeal 2013-000686 Application 11/046,273 4 ISSUE Did the Examiner reversibly err in finding that Sakuragi’s opening 8c and nozzle 10 constitute “a hollow discharge generation area” as recited in the claim 1? We decide this issue in the negative. FINDINGS OF FACT & ANALYSIS Appellants argue that Sakuragi1 does not teach or suggest the “hollow discharge generation area” recited in claim 1 (App. Br. 3). Appellants contend that a hollow discharge generation area is described in the Specification at paragraph 30 as creating new plasma and condensing plasma directed to the substrate treatment chamber, increasing neutral active species contributing to the surface treatment and further accelerating the surface treatment speed (App. Br. 3). Appellants contend that Sakuragi does not describe a structure that is capable of creating new plasma in that hollow plasma generation area and condensing the plasma (App. Br. 4). Appellants contend that the July 26, 2011 Declaration of Toshihiro Tabuchi, Kouichi Ishida, Hiroyuki Mizukami and Masayuki Takashiri (hereinafter the “Tabuchi Declaration”) establishes that Sakuguri’s device cannot generate hollow discharge (App. Br. 3-4). The Examiner finds that Sakuragi’s opening 8c and nozzle 10 constitute a hollow discharge generation area (Ans. 3). The Examiner finds that Sakuragi discloses that a plasma of carrier gas is sent to the “hollow discharge generation chamber” where the plasma is mixed with a gas 4 that 1 Appellants do not contest the teachings of Maher or the combination of Maher’s teaching with Sakuragi. Therefore, we limit our analysis to the Examiner’s findings regarding Sakuragi. Appeal 2013-000686 Application 11/046,273 5 is added to the carrier gas and a mixed plasma is further generated (Ans. 3). The Examiner finds that Sakuragi’s nozzle is hollow and defines a discharge generation area thereby meeting the claim that requires a hollow discharge generation area (Ans. 15). The Examiner further finds that Sakuragi teaches the same structure as recited in claim 1 and therefore one of ordinary skill in the art would expect it to perform in the claimed manner (Ans. 15). The claim recites a “hollow discharge generation area.” The Specification defines “hollow discharge” as “the phenomenon of plasma density increase due to enhanced plasma generation observed especially in through hole, recess or cavity portions” (Spec. 8-9). The Specification further describes that “new plasma” is generated at the plasma nozzle by this hollow discharge (Spec. 11). We construe “at least one of said plasma nozzles defining a hollow discharge generation area” in light of the Specification to mean at least one discharge nozzle that is structured so that plasma density increases due to enhanced plasma generation (i.e., additional new plasma generation). Because the claims are directed to an apparatus, we are concerned primarily with the structure required by the claimed invention. In re Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997). The Examiner finds that Sakuragi’s structure is identical to the structure recited in the claims and thus the device is capable of hollow discharge (Ans. 15). Appellants do not specifically respond to this finding of the Examiner (Reply Br. generally). Rather than address whether Sakuragi’s structure differs from the claimed structure, Appellants focus on the Tabuchi Declaration as establishing that hollow discharge cannot be generated at flow rates consistent with Sakuragi (Reply Br. 1). The Examiner addresses this argument that the flow rates through Sakuragi’s Appeal 2013-000686 Application 11/046,273 6 device are capable of being changed to slower flow rates such that the residence time of the gas is increased (Ans. 15). In other words, Appellants’ arguments are directed to the process variables used with the apparatus, not the structure of the apparatus. We have considered the Tabuchi Declaration. We find that the declarants’ opinions and conclusions regarding Sakuragi are not persuasive. Appellants opine that any attempt to generate hollow discharge in Sakuragi’s hole will fail because the plasma jet passing through an arc discharge is only generated in the communication path 10 (Tabuchi Dec. 3). Declarant Tabuchi’s statement, however, does not address whether Sakuragi’s structure is capable of hollow discharge at slower flow rates as found by the Examiner. Moreover, Appellants’ opinion that Sakuragi’s structure is incapable of hollow discharge is not supported by credible evidence. We therefore lack a basis to credit that testimony. Cf. Rohm and Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092, (Fed. Cir. 1997) (“Nothing in the rules or in our jurisprudence requires the fact finder to credit the unsupported assertions of an expert witness.”). On this record, we affirm the Examiner’s § 103 rejections. DECISION The Examiner’s decision 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. ORDER AFFIRMED