Robert Bondokov et al.

Patent Trials and Appeals BoardJun 29, 2021

2020004810 (P.T.A.B. Jun. 29, 2021)

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. 15/427,619 02/08/2017 Robert Bondokov CIS-007C4/107509-5007 7400 23517 7590 06/29/2021 MORGAN, LEWIS & BOCKIUS LLP (BO) 1111 PENNSYLVANIA AVENUE, N.W. WASHINGTON, DC 20004 EXAMINER SONG, MATTHEW J ART UNIT PAPER NUMBER 1714 NOTIFICATION DATE DELIVERY MODE 06/29/2021 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): kcatalano@morganlewis.com patents@morganlewis.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT BONDOKOV, KENNETH E. MORGAN, GLEN A. SLACK, and LEO J. SCHOWALTER Appeal 2020-004810 Application 15/427,619 Technology Center 1700 Before TERRY J. OWENS, LINDA M. GAUDETTE, and MERRELL C. CASHION, JR., Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 52–67. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Crystal IS, Inc. (Appeal Br. 2). Appeal 2020-004810 Application 15/427,619 2 CLAIMED SUBJECT MATTER The claims are directed to an aluminum nitride single crystal. Claim 52, reproduced below, is illustrative of the claimed subject matter: 52. An AlN single crystal having a plurality of microvoids disposed therein, wherein a density of the microvoids in a center region of the AlN single crystal is less than a density of the microvoids in an edge region of the AlN single crystal. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Dmitriev US 2005/0142391 A1 June 30, 2005 Fujiwara US 2006/0027896 A1 Feb. 9, 2006 Koukitu US 2015/0247260 A1 Sept. 3, 2015 REJECTIONS The claims stand rejected as follows: 1) claims 52, 57, 58, and 64–67 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over Dmitriev; 2) claims 53–56 under 35 U.S.C. § 103(a) over Dmitriev in view of Fujiwara; 3) claims 59 and 60 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over Dmitriev, with Koukitu (which is not prior art) being relied upon as evidence of inherency; and 4) claims 61–63 under 35 U.S.C. § 103(a) over Dmitriev. OPINION We need address only the sole independent claim, i.e., claim 1. The Appellant’s Specification states (Spec. 2:16–22): Microvoids (MVs) in AlN single crystals are a type of crystallographic defect that can be classified as an inclusion. The lateral (i.e. parallel to the c-plane) size of the MV defects typically varies from 0.1 to 3 micrometers (µm). Under low resolution (≤ 100x) Appeal 2020-004810 Application 15/427,619 3 optical microscopy, the MVs appear to be spherically shaped inclusions. However, under higher (≥ 200x) resolution optical microscopy, as well as when imaged using Atomic Force Microscopy (AFM), the MVs appear to have a hexagonal shape well aligned with (i.e., approximately parallel to) the c-plane. Dmitriev discloses an AlN layer grown based on hydride vapor phase epitaxy (HVPE) and having a defect density as low as less than 104 cm-2 (¶ 7). The Examiner states that “[t]he rejection is made on the basis of inherency and the Examiner maintains that inclusion defects, i.e. microvoid defects are necessarily, and unavoidably formed during crystal growth, as evidenced by Koutkitu [sic]” (Ans. 9). An inherent characteristic must be inevitable, and not merely a possibility or probability. See In re Oelrich, 666 F.2d 578, 581 (CCPA 1981). The Examiner finds that microvoids are inherent in Dmitriev’s AlN crystal because: 1) the Appellant acknowledges that microvoids are a type of inclusion and are observed using optical microscopy (Spec. 2:16–22), and Koukitu observed inclusion defects having an outer diameter of 1– 200 µm in single crystalline AlN layers using optical microscopy (¶ 46) (Ans. 8); 2) the Appellant’s disclosure that hydrogen molecules easily can be trapped in AlN material and agglomerate to create microvoids (Spec. 9:27– 29) indicates that hydrogen formed during Koukitu’s HVPE would be trapped in the AlN layers and produce microvoids/inclusions (Ans. 9–11); 3) Dmitriev’s disclosure that peripheral highly defective regions of AlN plates were removed by grinding indicates that the center region inherently has a lower microvoid defect density than the edge/peripheral region Appeal 2020-004810 Application 15/427,619 4 (Final 9); and 4) Dmitriev’s disclosure that AlN wafer pit densities ranged from 10 to 1000 per square centimeter (¶ 85) suggests that some of the edge pits are formed from microvoids (Final 8). The Appellant argues: 1) “defects” is a generic term that encompasses threading dislocations and inclusions, and “inclusions” is a subgenus including particulates and microvoids, so Dmitriev’s defects and Koukitu’s inclusions are not necessarily microvoids (Reply Br. 5–6); 2) Koukitu distinguishes microvoids and inclusions by disclosing that “minute particles arriving on the substrate are responsible for the observed inclusions” (¶ 58) and that “[u]nlike voids, the inclusions have a significant impact during growth of the single crystalline AlN layers” (¶ 53), thereby indicating that inclusions formed by deposition of solid particulates, even if they are similarly sized and observable by optical microscopy, differ from microvoids arising from the trapping of gas within the growing crystal (Reply Br. 7–8); and 3) Inventor Robert Bondokov states in his Declaration under 37 C.F.R. § 1.132 that the AlN crystal defects formed by Dmitriev’s HVPE are not microvoids but, rather, are threading dislocations, Dmitriev’s lateral overgrowth techniques cannot control microvoid density, and Dmitriev’s x-ray diffraction rocking curve measurements are sensitive to threading dislocation densities but not to the presence and density of microvoids in a single-crystalline material (¶¶ 5–7) (Appeal Br. ; Reply Br. 8–9). Thus, the Appellants present a substantial and persuasive challenge to the Examiner’s finding that Dmitriev’s AlN crystals inherently contain microvoids, and to the Examiner’s reasoning in support of that finding. The Examiner does not provide evidence overcoming that challenge. Appeal 2020-004810 Application 15/427,619 5 Regarding obviousness, the Examiner concludes that “it would have been obvious to one of ordinary skill in the art at the time of the invention Dmitriev et al to have microvoid defects be lower in the center region than the edge because the center region is the usable region of the single crystal and the edge region is removed during substrate processing” (Final 4), but the Examiner provides no explanation in support of that conclusion. The record, therefore, indicates that the Examiner has not established a prima facie case of anticipation or obviousness of the Appellant’s claimed AlN single crystal. Accordingly we reverse the rejections. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 52, 57, 58, 64–67 102(b)/103(a) Dmitriev 52, 57, 58, 64–67 53–56 103(a) Dmitriev, Fujiwara 53–56 59, 60 102(b)/103(a) Dmitriev, Koukitu 59, 60 61–63 103(a) Dmitriev 61–63 Overall Outcome 52–67 REVERSED