Ex Parte Vahlas et alDownload PDFPatent Trial and Appeal BoardMar 1, 201611792020 (P.T.A.B. Mar. 1, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 111792,020 03/27/2008 Constantin V ahlas 45722 7590 03/02/2016 Howard IP Law Group P.O. Box226 Fort Washington, PA 19034 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. BEAUMONT-45 7954 EXAMINER CHEN, KEATH T ART UNIT PAPER NUMBER 1716 MAILDATE DELIVERY MODE 03/02/2016 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 TRIAL AND APPEAL BOARD Ex parte CONSTANTIN VARLAS, BRIGITTE CAUSSAT, FRANCOIS SENOCQ, and WAYNE L. GLADFELTER Appeal2014-007371 Application 11/792,020 Technology Center 1700 Before ROMULO H. DELMENDO, JACQUELINE WRIGHT BONILLA, and BRIAND. RANGE Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-007371 Application 11/792,020 SUMMARY Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1, 2, 4--7, 14--18, 20, 22-25, 30, and 31. We have jurisdiction. 35 U.S.C. § 6(b ). We AFFIRM. STATEMENT OF CASE Appellants 1 describe the present invention as relating to a device for providing vapors of a solid precursor for use with, for example, chemical vapor deposition (CVD). Spec. 19 (substitute sheet for Spec. 1):2-7. Claims 1, 6, and 17 are independent claims. Claim 6, reproduced below, is illustrative of the claimed subject matter: 6. A physico-chemical processing system comprising a device for providing vapors of at least one solid precursor and a physico- chemical processing device receiving said vapors, characterized in that said device comprises: an enclosure configured to contain particles of the solid precursor and comprising an inlet and an outlet, the outlet being connected to the physico-chemical processing device; means for circulating a gas between the inlet and the outlet to put the particles of the solid precursor in the form of a fluidized bed within said enclosure, and to carry towards the outlet of said enclosure vapors of the solid precursor; and a heater for heating the inner volume of the enclosure to generate vapors of the solid precursor in said fluidized bed, wherein the heater comprises a plurality of resistors surrounding the enclosure and extending the entire length of the enclosure. 1 According to the Appellants, the real parties in interest are Centre National De La Recherche Scientifique, Regents of the University of Minnesota, and the National Science Foundation. Appeal Br. 2. 2 Appeal2014-007371 Application 11/792,020 REFERENCES The Examiner relied upon the prior art below when rejecting the claims on appeal: Ferguson Fox et al. (hereinafter, "Fox") Ostertag et al. (hereinafter, "Ostertag") Fothergill George et al. (hereinafter, "George") Gregg et al. (hereinafter, "Gregg") Serp et al. (hereinafter, "Serp") us 4,226,668 us 4,366, 131 us 4,978,394 Oct. 7, 1980 December 28, 1982 Dec. 18, 1990 US 5,081,081 Jan. 14, 1992 US 2003/0026989 Al Feb. 6, 2003 US 2004/0016404 Al Jan. 29, 2004 US 2004/0234445 Al Nov. 25, 2004 REJECTIONS Claims 1, 2, 4--7, 14--18, 20, 22-25, 30, and 31 are pending on appeal. Claims 3, 13, 19, 21, and 26-29 were previously cancelled. Appeal Br. 4. Claims 8-12 were withdrawn from consideration. Id. The Examiner made the following rejections: Rejection 1. The Examiner rejected claims 6 and 7 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, and Fox. Final Act. 3. Rejection 2. The Examiner rejected claims 1, 4, 5, 16-18, 20, 22, 23, 25, 30, and 31 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, Fox, and Fothergill. Final Act. 6. Rejection 3. The Examiner rejected claims 2, 15, and 24 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, Fox, Fothergill, and Ostertag. Final Act. 12. 3 Appeal2014-007371 Application 11/792,020 Rejection 4. The Examiner rejected claim 14 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, Fox, Fothergill, and Ferguson. Final Act. 13. Rejection 5. In the alternative, the Examiner rejected claims 23 and 31 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, Fox, Fothergill, and Serp. Final Act. 14. ANALYSIS Appellants' arguments with respect to each of the Examiner's rejections are discussed below. Rejection 1. With respect to the Examiner's first rejection, Appellants do not argue claim 7 separately. We therefore limit our discussion to claim 6. Claim 7 stands or falls with that claim. 37 C.F.R. § 41.37(c)(l)(iv) (2013). The Examiner rejected claims 6 and 7 as obvious over the combination of Gregg, George, and Fox. Final Act. 3. The Examiner explains that Gregg teaches a vaporizer delivery system comprising an ampoule 12 with a plurality of stacked contacting containers to form a container for holding solid precursor material. Id. at 4 (citing Gregg, Fig. 1; i-fi-152, 54). The Examiner found further that Gregg identifies a carrier gas inlet and carrier gas outlet. Id. The apparatus of Gregg was found to be configured to create fluidized beds and to include a ribbon heater around the vaporizer. Id. The Examiner found that Gregg does not teach explicitly a mass flow controller (corresponding to the means-plus-function structural limitation of the "means for circulating a gas between the inlet and the 4 Appeal2014-007371 Application 11/792,020 outlet" term, as the Examiner has construed it2) or "a heater ... extending the entire length of the enclosure." Id. at 5. The Examiner found that George also relates to a process utilizing a fluidized bed. Id. George teaches a mass flow controller connected to a reactor. Id. The Examiner found that a person of skill would recognize George's advantage of controlling fluidizing gas flow with the mass flow controller. Id. The Examiner also found that Fox relates to fluidized beds and teaches a cylindrical heating jacket extending along the entire length of the fluidized bed casing. Id. at 6. According to the Examiner, extending resistor heater systems of Gregg to the entire length of the fluidized bed enclosure, as taught by Fox, would improve evening of heating throughout the stack containers throughout the Gregg's apparatus. Id.; see also, e.g., Gregg i-f 77. We agree with the Examiner's findings of fact and reasoning, which we adopt as our own. In particular, we find that a person of ordinary skill in the art would have understood from the disclosures of the techniques of George and Fox, that each would predictably improve the device described by Gregg in the same manner in which they improve the devices of George and Fox. See Final Act. 5 (explaining that it would have been obvious to replace Gregg's flow meter 68 with George's mass flow controller to control 2 It is not necessary for us to construe this claim term because Appellants do not dispute that Gregg teaches this limitation. Cf Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential) (citation omitted) ("If an appellant fails to present arguments on a particular issue ... the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection"), cited with approval in In re Jung, 637 F.3d 1356, 1365-1366 (Fed. Cir. 2011). Instead, Appellants dispute whether or not Gregg may be properly combined with other references. 5 Appeal2014-007371 Application 11/792,020 fluidizing gas flow), 6 (explaining that it would be obvious to extend George's heater system as taught by Fox "for the purpose of evenness of heating throughout the stack of containers"). As discussed further below, Appellants present insufficient evidence or argument that combining George and/ or Fox with Gregg would be beyond the skill of a person of ordinary skill in the art. Improvement of Gregg in this manner is no more than the predictable use of prior art elements according to their established functions. Thus, we agree with the Examiner's conclusion that the subject matter of claim 6 would have been obvious to a person of ordinary skill in the art in view of the collective teachings of Gregg, George, and Fox. KSR Int'!, Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Appellants present four arguments to the contrary, but they are not persuasive. Appellants first argue that Gregg does not teach the claimed enclosure. Appeal Br. 13-14. The Examiner, however, correctly identifies the ampoule of Gregg as an enclosure having an inlet and an outlet. Ans. 9- 10; see also Gregg Fig. 1, i-fi-152-54. The outlet is configured to be connected to the processing chamber (containing the physico-chemical processing device). Final Act. 4, Gregg Fig. 6, i-fi-173-76. Thus, Gregg teaches the enclosure recited in claim 6. Second, in reply, Appellants argue that the claims require "f!: fluidized bed" (in other words, exactly one fluidized bed) whereas Gregg has plural "fluidized beds." Reply Br. 7-8 (emphasis original). As a threshold matter, we need not consider this argument because it is raised for the first time in reply. 37 C.F.R. § 41.41(2). Even if we were to consider the argument, the Federal Circuit has "repeatedly emphasized that an indefinite article 'a' or 'an' in patent parlance carries the meaning of 'one or more' in open-ended 6 Appeal2014-007371 Application 11/792,020 claims containing the transitional phrase 'comprising.'" KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000) (citations omitted). No clear intent to the contrary exists in the claims or specification at issue here. Thus, Gregg's fluidized beds satisfy claim 6's "a fluidized bed" limitation. Third, Appellants argue that the Examiner erred in citing George and Fox because the references are directed to non-analogous art. Appeal Br. 14--18. In addressing this argument, the Supreme Court's KSR decision "directs us to construe the scope of analogous art broadly, stating that 'familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle."' Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010) (quoting KSR, 550 U.S. at 402) (emphasis original). Here, a preponderance of evidence establishes that a person of ordinary skill in the art would have looked to George's teaching of a mass flow controller to improve the flow of Gregg. Final Act. 5; George i-fi-17, 28, 96. Similarly, a person of ordinary skill in the art would have looked to the extended jacket sleeve of Fox to improve the heating of Gregg. Id. at 6; Fox 2:63---65. 3:26-31, Fig. 1. Both George and Fox relate to fluidized beds as described by Gregg, and the features of George and Fox would be familiar items to a person of ordinary skill designing a fluidized bed. See, e.g., id. at 5---6; Ans. 11-12; Gregg i159; George i-fi-128, 60, 96; Fox 2:63---65, 4:32-58, 7:24--30; cf In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1380 (Fed. Cir. 2007) ("[A Jn inventor considering a hinge and latch mechanism for portable computers would naturally look to references employing other 7 Appeal2014-007371 Application 11/792,020 'housings, hinges, latches, springs, etc.,' which in that case came from areas such as 'a desktop telephone directory, a piano lid, a kitchen cabinet, a washing machine cabinet, a wooden furniture cabinet, or a two-part housing for storing audio cassettes.'") (quoting In re Paulsen, 30 F.3d 1475, 1481-82 (Fed. Cir. 1994)). Thus, we agree with the Examiner that the combination of these references is appropriate. Ans. 11, 12. Fourth, Appellants argue that there is no rational basis for combining Gregg, George, and Fox because George teaches away from CVD processes and because George does not teach particles of a solid precursor in the fluidized bed. Appeal Br. 18, 19. With respect to teaching away, the passage quoted by Appellants (George i-f 7) only states that "currently practiced commercial methods" for chemical vapor deposition (in other words, methods pre-dating George's disclosure) do not provide the same control as George's teachings. Nothing about the passage suggests that George's mass flow controller could not be used beneficially by Gregg's system. The cited passage cannot be said to "teach away" because it does not lead a person of ordinary skill "in a direction divergent from the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). With respect to Appellants' argument that George does not teach particles of a solid precursor in the fluidized bed, the Examiner, relies on Gregg rather than George to meet this claim element. Final Act. 4. Appellants do not refute that Gregg includes this teaching. Cf In re Keller, 642 F.2d 413, 425 (CCPA 1981) (holding that one cannot show nonobviousness by attacking individual references when rejection is based on combination of references). Moreover, any distinction in the particles of 8 Appeal2014-007371 Application 11/792,020 George and Gregg does not negate the reasons to combine George's mass flow controller with the apparatus of Gregg for the reasons explained above. Thus, we affirm this rejection. Rejections 2-5. With respect to the Examiner's remaining rejections, Appellants do not separately argue claims 1, 2, 4, 5, 14--16, 18, 20, 22, 23- 25, 30, and 31. 3 We therefore limit our discussion to claims 1 and 17. The dependent claims stand or fall with that claim. 37 C.F.R. § 41.37(c)(l)(iv) (2013). Appellants repeat their arguments with respect to claim 6 to argue for the patentability of claims 1 and 1 7. Those arguments fail for the reasons explained above. Appellants also argue that Fothergill, like George and Fox, cannot support an obviousness rejection because it is non-analogous art. The Examiner cites Fothergill to meet the enclosure containing "particles of a physically and chemically inert compound" limitation of claims 1 and 1 7. Fothergill teaches a fluidized bed vaporizer containing sand where particles of zirconia are coated with an oxide or hydrous oxide of a stabilizing agent for zirconia. Final Act. 10; Fothergill Abstract. Fothergill's use of sand improves its fluidized bed. We agree with the Examiner's undisputed finding that a person of ordinary skill would have recognized that the sand predictably helps avoid coagulation of reactant particles. Id. 4 We find that improvement of Gregg by including sand in its fluidized bed as taught by Fothergill would have been no more than the predictable use of prior art 3 These claims are each directly or indirectly dependent upon claim 1 or claim 17. Appellants make no argument at all with respect to claim 14. 4 Fox also explains the benefits of using an inert material (such as sand). Fox 5: 10-20. 9 Appeal2014-007371 Application 11/792,020 elements according to established functions. Thus, we agree with the Examiner that Fothergill may properly be combined with Gregg, and we affirm these rejections. DECISION For the above reasons, we affirm the Examiner's rejections of claims 1, 2, 4--7, 14--18, 20, 22-25, 30, and 31. In particular, we affirm the Examiner's rejections (1) of claims 6 and 7 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, and Fox, (2) of claims 1, 4, 5, 16-18, 20, 22, 23, 25, 30, and 31 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, Fox, and Fothergill, (3) of claims 2, 15, and 24 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, Fox, Fothergill, and Ostertag, ( 4) of claim 14 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, Fox, Fothergill, and Ferguson, and (5) of claims 23 and 31 under 35 U.S.C. § 103 as unpatentable over the combination of Gregg, George, Fox, Fothergill, and Serp. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 10 Copy with citationCopy as parenthetical citation