Joseph Charles. Reed

Patent Trials and Appeals Board

Sep 23, 2019

13187300 - (D) (P.T.A.B. Sep. 23, 2019)

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.
13/187,300 07/20/2011 Joseph Charles Reed 53358.02700 5989
80691 7590 09/23/2019
Snell & Wilmer L.L.P. (ASM America)
One Arizona Center
400 E Van Buren St, Ste 1900
Phoenix, AZ 85004-2202
EXAMINER
LUND, JEFFRIE ROBERT
ART UNIT PAPER NUMBER
1716
NOTIFICATION DATE DELIVERY MODE
09/23/2019 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):
ASM_SW_TEAM@swlaw.com
IPDocket@swlaw.com
cpillote@swlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________
Ex parte JOSEPH CHARLES REED
_____________
Appeal 2018-006790
Application 13/187,300
Technology Center 1700
_____________
Before JEFFREY B. ROBERTSON, GEORGE C. BEST, and LILAN REN,
Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1–4, 6–18, and 21 of
Application 13/187,300 under 35 U.S.C. § 103(a) as obvious.1 Final Act. 2–
3 (August 9, 2017). The Examiner also finally rejected claims 1–4 and 6–12
under 35 U.S.C. § 112, ¶ 2, as indefinite. Id. at 2. Appellant2 seeks reversal

1 The ’300 Application was filed on July 20, 2011, which is before the
effective date of the America Invents Act. Accordingly, the pre-AIA version
of the statute applies.
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as ASM
America, Inc. Appeal Br. 4.
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Application 13/187,300
2
of these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction
under 35 U.S.C. § 6(b).
For the reasons set forth below, we affirm.
BACKGROUND
The ’300 Application describes apparatus for measuring process
pressure in semiconductor processing tools. As the Specification describes, it
can be difficult to measure the process pressure in such apparatus. Spec. ¶ 1.
In particular, “process gases and byproducts present in some film deposition
processes may restrict gas flow in sampling ports used by some pressure
measurement devices.” Id. This leads to inaccurate pressure readings
obtained from pressure gauges connected to such ports. Id. According to the
Specification, the apparatus described in the ’300 Application mitigates this
problem.
Claim 1 is representative of the ’300 Application’s claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
1. A semiconductor processing module for processing a
substrate with a reactive process gas in a vacuum chamber, the
semiconductor processing module comprising:
a reactor positioned within the vacuum chamber for
processing the substrate with the reactive process gas; and
a pressure-sensitive structure located within a processing
environment of the reactor operative to transmit a pressure
transmission fluid pressure to a pressure sensor exterior to the
vacuum chamber, such pressure transmission fluid pressure
varying in response to a pressure of the reactive process gas in
contact with the pressure-sensitive structure,
the pressure-sensitive structure comprising a displaceable
diaphragm comprising one or more of stiffening structures and
surface textures,
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Application 13/187,300
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wherein the pressure-sensitive structure has a process
side being exposed to the low-pressure substrate processing
environment, the process side being mounted flush with a top
surface of the bottom plate.
Appeal Br. 20 (emphasis added).
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1–4 and 6–12 are rejected under 35 U.S.C. § 112, ¶ 2, as
indefinite. Answer 3.
2. Claims 1–4, 6–18, and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Reed,3 Mohn,4 and
Rosemount.5 Answer 4.
DISCUSSION
Rejection 1. In the Appeal Brief, Appellant states that it does not
challenge the rejections of claims 1–4, 6–18, and 21 as indefinite. Appeal
Br. 19. In the Reply Brief, however, Appellant acknowledges that it did not
appeal the indefiniteness rejections but seeks to amend claims 1 and 13.
Reply Br. 2 (citing 37 C.F.R. §§ 41.39(b)(1), 41.50(a)(2)(i), or 41.50(b)(1)
as providing authority for this request).
We begin by noting that the Examiner did not reject claims 13–18 and
21 as indefinite. See Final Act. 2.

3 US 2010/0202860 A1, published August 12, 2010.
4 US 2012/0161405 A1, published June 28, 2012.
5 Rosemount Inc., Rosemount 1199 Diaphragm Seal Systems (January
2008).
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Next, we turn to Appellant’s request to amend claims 1 and 13. We
deny this request. None of the regulatory provision cited by Appellant
provide Appellate with the opportunity to amend claims at this point in the
prosecution of the ’300 Application. Each of these provisions provides an
appellant a chance to amend claims in the event of the entry of a new ground
of rejection.
In view of the foregoing, we affirm the rejection of claims 1–4 and 6–
12 as indefinite.
Rejection 2. The Examiner rejected claims 1–4, 6–18 and 21 as
unpatentable over the combination of Reed, Mohn, and Rosemount. Final
Act. 2–14.
Claim 1. Appellant argues that claim 1 is patentable over this
combination of references because the Examiner has not established a prima
facie case of obviousness. Appeal Br. 11–14. In particular,
Appellant argues that the prior art does not describe or suggest the
claim limitation requiring that “the pressure-sensitive structure has a process
side being exposed to the low-pressure substrate processing environment,
the process side being mounted flush with a top surface of the bottom plate.”
Id.
In rejecting claim 1, the Examiner found that Mohn describes
mounting pressure sensors to the interior wall of the reactor at one or more
locations inside the reactor. Final Act. 3. The Examiner further found that
Mohn describes pressure sensors that “may also be mounted at an elevation
approximately coincident with the plane of wafer 410 when wafer 410 is
undergoing a deposition process.” Id. at 4 (citing Mohn ¶ 171). According to
the Examiner, this description “is equivalent to ‘on a surface of the bottom
plate’ (see Figure 1 of the present invention). Alternately, it would be
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Application 13/187,300
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obvious to place the pressure sensor on the top surface of the bottom plate to
allow measurement of the pressure ‘coincident’ with the plane of the wafer.”
Id.
Appellant argues that ’300 Application’s Specification “teaches away
from Mohn” because it states that “placing pressure sensors within a process
region, and particularly, the pressure sensors being exposed to the low-
pressure substrate processing environment and/or being mounted flush with
a top surface of the bottom plate would be problematic.” Appeal Br. 13.
This argument is not persuasive of the existence of reversible error.
“Teaching away” is an argument that the prior art references used in the
rejection contain information that would discourage a person of ordinary
skill in the art at the time of the invention for making the combination
proposed in the rejection. “A reference may be said to teach away when a
person of ordinary skill, upon reading the reference, would be discouraged
from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant.” In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Appellant’s reliance upon its
Specification in arguing that the combination of Reed, Mohn, and
Rosemount is discouraged is misplaced.
Moreover, Appellant’s argument is based upon the limitations of the
particular type a sensor described in Mohn. Appeal Br. 13–14. In the
rejection, however, the Examiner relies upon Rosemount for its description
of types of pressure sensors that overcome the limitations of Mohn’s
pressure sensor. Final Act. 5–6. Thus, Appellant’s argument amounts to an
attack individual reference rather than on the entirety of the proposed
combination. Such arguments do not establish reversible error. See In re
Keller, 642 F.2d 413, 426 (CCPA 1981); In re McLaughlin, 443 F.2d 1392,
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1395 (CCPA 1971) (“[T]he test for combining references is not what the
individual references themselves suggest but rather what the combination of
disclosures taken as a whole would suggest to one of ordinary skill in the
art.”).
In view of the foregoing, we affirm the rejection of claim 1.
Claims 2–4 and 6–12. Appellant first argues that dependent claims 2–
4 and 6–12 are patentable because they depend from allowable independent
claim 1. Appeal Br. 14–15. Because we have affirmed the rejection of claim
1, we do not reverse the rejection of claims 2–4 and 6–12 on this basis.
Appellant separately discusses claims 2, 6, and 7. Id. at 15.
Appellant’s discussion of these claims is a recitation of a claim limitation
followed by a naked assertion that the references do not teach or suggest that
claim limitation. Id. This is insufficient to amount to a separate arguments
for patentability of these claims.
Appellant also separately discusses claim 11:
Applicant submits a claim 11 is additionally allowable over the
cited art, because none of the references teach or suggest
“wherein the transmission side comprises projections.” The
[Final] Action relies on Rosemount for purportedly disclosing
projections. See [Final] Action, p. 8. Applicant disagrees.
Applicant submits that the illustration on p. 35 of Rosemount is
an artifact of enlarging a view and does not disclose any
projections.
Id.
The Examiner responds that that the projections shown in the figure
on page 35 of Rosemount are not an artifact of enlargement and
reproduction. Answer 22. The Examiner also identifies additional figures
that depict the claimed projections. Id. (citing Rosemont 39, 40, 44, 45, 48,
51, and 54).
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Appellant does not address the Examiner’s Answer in the Reply Brief.
We have reviewed the figure on page 35 of Rosemount and are not
persuaded that the Examiner reversibly erred by finding that Rosemount
discloses a transmission side comprising projections. Accordingly, we do not
reverse the rejection of claim 11.
For the reasons set forth above, we affirm the rejection of claims 2–4
and 6–12.
Claim 13. Appellant argues that independent claim 13 is patentable
over the combination of Reed, Mohn, and Rosemount because the Examiner
has not established a prima facie case of obviousness. Appeal Br. 15–16.
Appellant argues that the cited prior art does not teach or suggest the
claimed “displaceable diaphragm included in the bottom plate, the
displaceable diaphragm adapted to transmit process pressure information to
a pressure sensor located exterior the reactor for the low-pressure substrate
processing environment responsive to the movement of the displaceable
diaphragm, wherein the displaceable diaphragm comprises one or more of
stiffening structures and a surface texture, wherein the pressure-sensitive
structure has a process side being exposed to the low-pressure substrate
processing environment, the process side being mounted flush with a top
surface of the bottom plate.” Id.
First, Appellant argues that Mohn does not disclose a “displaceable
diaphragm included in the bottom plate.” Id. at 16. As discussed above, the
Examiner found that Mohn describes or suggests locating the displaceable
diaphragm in the bottom plate. See Final Act. 3–5. Appellant has not
demonstrated reversible error in this finding.
Second, Appellant argues that Rosemount does not disclose the
claimed displaceable diaphragm. Appeal Br. 16. Appellant’s argument
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amounts to a naked assertion that Rosemont does not disclose a claimed
structure. Id. The Examiner, however, found that Rosemount does, in fact,
disclose such a structure. Final Act. 5–6. Appellant’s “argument” does not
attempt to show error with respect to any of the specific findings set forth in
the rejection. Appellant’s argument, therefore, is not persuasive of the
existence of reversible error.
In view of the foregoing, we affirm the rejection of claim 13.
Claims 14–18. Appellant argues that dependent claims 14–18 are
patentable over the combination of Reed, Mohn, and Rosemount because
they depend from allowable independent claim 13. Appeal Br. 17. As
discussed above, we have affirmed the rejection of claim 13. We, therefore,
do not reverse the rejection of claims 14–18 on the basis asserted by
Appellant.
Appellant also present separate arguments for the patentability of
claim 15. Claim 15 reads:
15. The reactor of claim 13, the displaceable diaphragm
including a process side that is flush with a top surface of the
bottom plate, the top surface being exposed to the low-pressure
substrate processing environment, and a bottom surface,
wherein only a portion of the bottom surface is wetted by a
transmission fluid.
Appeal Br. 22–23 (emphasis added).
In rejecting claim 15, the Examiner found that
Rosemount does not teach a bottom surface, wherein only a
portion of the bottom surface is wetted by a transmission fluid.
The amount of transmission fluid is an intended use of the
apparatus. The motivation for changing the amount of
transmission fluid is to optimize the sensitivity of the
displaceable diaphragm. Therefore it would be obvious to one
of ordinary skill in the art to optimize the amount of
transmission fluid such that only a part of the bottom surface of
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Application 13/187,300
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the displaceable diaphragm is wetted. . . . The apparatus of
Reed et al[.], Mohn et al[.], and Rosemount is capable of
supplying enough transmission fluid that only a portion of the
bottom surface of the displaceable diaphragm is wetted by the
transmission fluid.
Final Act. 9.
Appellant argues for the reversal of the rejection of claim 15. Appeal
Br. 17. In doing so, Appellant only challenges the Examiner’s finding that
the amount of transmission fluid is an intended use of the apparatus. See id.
Appellant does not challenge the Examiner’s finding that the amount of
transmission fluid is a result-effective variable or that it would have been
obvious to optimize the amount of transmission fluid. Id. Appellant’s
argument, therefore, is not persuasive of the existence of reversible error in
the Examiner’s rejection of claim 15.
In view of the foregoing, we affirm the rejection of claims 14–18.
Claim 21. Appellant argues that independent claim 21 is patentable
over the combination of Reed, Mohn, and Rosemount because the Examiner
has not established a prima facie case of obviousness. Appeal Br. 17–19. In
particular, Appellant argues that the combination of prior art used in the
rejection does not teach or suggest the claimed pressure-sensitive structure
comprising a diaphragm having one or more of stiffening structures and a
surface texture and a bottom surface wherein only a portion of the bottom
surface is wetted by a transmission fluid. Id. at 17–18.
These arguments are not persuasive of the existence of reversible
error.
First, the Examiner found that Rosemount describes the pressure-
sensitive structure comprising a displaceable diaphragm with one or more of
pleats, stiffening structures and surface textures. Final Act. 12–13; Answer
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24. Appellant does not present specific arguments demonstrating reversible
error in the Examiner’s findings. See Appeal Br. 18–19.
Second, as discussed above, Appellant’s arguments with respect to the
limitation that “only a portion of the bottom surface is wetted by a
transmission fluid” is neither described or suggested by the prior art are not
persuasive.
In view of the foregoing, we affirm the rejection of claim 21.
CONCLUSION
In summary:
Claims
Rejected Basis Affirmed Reversed
1–4 and 6–12 § 112, ¶ 2 1–4 and 6–12
1–4, 6–18, and 21
§ 103
Reed, Mohn, and
Rosemount
1–4, 6–18, and
21
Overall Outcome 1–4, 6–18, and 21
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