Atsushi Endo et al.

Patent Trials and Appeals Board

Jan 27, 2020

13432599 - (D) (P.T.A.B. Jan. 27, 2020)

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.
13/432,599 03/28/2012 Atsushi ENDO BPL0158US 7056
23413 7590 01/27/2020
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
EXAMINER
DHINGRA, RAKESH KUMAR
ART UNIT PAPER NUMBER
1716
NOTIFICATION DATE DELIVERY MODE
01/27/2020 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):
usptopatentmail@cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ATSUSHI ENDO, MASAKI KUROKAWA,
and HIROKI IRIUDA

____________

Appeal 2019-002310
Application 13/432,599
Technology Center 1700
____________

Before KAREN M. HASTINGS, RAE LYNN P. GUEST, and
GEORGE C. BEST, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision rejecting claims 9–13 under 35 U.S.C. § 103 as
unpatentable over at least the combined prior art of Takeuchi (JP 06-005533,

1 We use the word “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Tokyo Electron Limited as the real
party in interest (Appeal Br. 3).
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Jan. 14, 1994; as translated), Inoue (JP 09-055372 A, Feb. 25, 1997; as
translated), and Nagakura (US 2001/0025605 A1, pub. Oct. 4, 2001).2
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Claim 9 is illustrative of the subject matter on appeal (italicized
portions indicate the key disputed limitation):
9. A vertical batch-type film forming apparatus that
collectively performs a film forming process to a plurality of
processing targets, the vertical batch-type film forming
apparatus comprising:
an accommodating container;
a processing chamber disposed inside the accommodating
container, the processing chamber accommodating a plurality of
processing targets stacked in a heightwise direction and
collectively performs a film forming process to the plurality of
processing targets;
a heating device which heats the plurality of processing
targets accommodated in the processing chamber, and comprises
a plurality of heating bodies for heating different portions inside
the processing chamber;
an exhauster disposed outside the accommodating
container, the exhauster evacuating an inside of the processing
chamber;
a gas supply mechanism which supplies a gas used in a
process into the accommodating container;

2 An additional reference, Merry (US 2009/0004405 A1, pub. Jan. 1, 2009),
was applied to dependent claim 10 and is listed in the Summary Table
located at the end of this Decision. Discussion of this reference is not
necessary for disposition of this appeal.
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a plurality of gas holes formed in a first side wall of the
processing chamber to flow the gas from a space defined by an
inner wall of the accommodating chamber and the first side wall
of the processing chamber toward the plurality of processing
targets inside the processing chamber;
an exhauster port, one end of which is coupled to a lower
portion of a second side wall of the processing chamber, the
second side wall being opposite to the first side wall, the other
end of which is coupled to the exhauster disposed outside the
accommodating container in such a way that the gas flows
directly from the processing chamber to the exhauster; and
a controller which is configured to control the vertical
batch-type film forming apparatus such that
(i) the gas used in a process is supplied into the
processing chamber via the plurality of gas holes in a parallel
flow to processing surfaces of the plurality of processing targets,
and
(ii) the film forming process is collectively performed
to the plurality of processing targets without setting a furnace
temperature gradient in the processing chamber, wherein when
the film forming process is collectively performed to the plurality
of processing targets, temperatures of the plurality of heating
bodies are set to be the same.

Appellant’s arguments focus on independent claim 9, and they do not
present additional arguments for any other claim (see generally Briefs).
Accordingly, all claims, including those separately rejected, stand or fall
together.
OPINION
Upon consideration of the evidence of record and each of Appellant’s
contentions as set forth in the Appeal Brief, as well as the Reply Brief, we
determine that Appellant has not demonstrated reversible error in the
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Examiner’s rejections (e.g., see generally Ans.). In re Jung, 637 F.3d 1356,
1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of
requiring Appellant(s) to identify the alleged error in the Examiner’s
rejection). We sustain the rejections for the reasons expressed by the
Examiner in the Final Office Action and the Answer.
We add the following primarily for emphasis.
It has been established that “the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972 F.2d 1260, 1264–
65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings
thereof as well as the inferences one of ordinary skill in the art would have
reasonably been expected to draw therefrom).
Appellant’s main contention is that Nagakura’s gas feeder “is
completely different” to the claimed configuration (Appeal Br. 15) such that
it would not have been obvious to add the controller for the heating elements
of Nagakura to the Takeuchi/Inoue combination as proposed by the
Examiner because of the differing gas flow paths (Appeal Br. 15, 16; e.g.,
Reply Br. 8, 12). Appellant is de facto arguing that Nagakura teaches away
from the claimed invention. Appellant also argues that the Examiner is
using impermissible hindsight (e.g., Appeal Br. 18, 19; generally Reply Br.).
Appellant’s arguments are not persuasive of reversible error for reasons
presented by the Examiner (Ans. 5–10).
In KSR, the Supreme Court stated that:
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In determining whether the subject matter of a . . . claim is
obvious, neither the particular motivation nor the avowed
purpose of the patentee controls. What matters is the objective
reach of the claim. If the claim extends to what is obvious, it is
. . . [unpatentable] under § 103.
“The Supreme Court’s decision in KSR . . . 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 420).
It is also well established that a prior art reference must be considered
in its entirety, i.e., as a whole, when determining if it would lead one of
ordinary skill in the art away from the claimed invention. W.L. Gore &
Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 1550 (Fed. Cir. 1983); In re
Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005) (whether a reference teaches
away from a claimed invention is a question of fact).
Each of the applied references is directed to a heated, vertically-
arranged, wafer processing reactor, such that one of ordinary skill in the art,
using no more than ordinary creativity, would have combined the known
features of such reactors in accordance with the Examiner’s position with a
reasonable expectation of success. One of ordinary skill in the art would
have inferred and readily appreciated that a known heater controller for a
wafer processing reactor that may be configured to either maintain a uniform
temperature or to provide a temperature gradient, such as taught in
Nagakura, may be used on any wafer processing reactor such as that of the
Takeuchi/Inoue wafer processing reactor combination (Ans. 5, 6).
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Likewise, Appellant’s arguments regarding impermissible hindsight to
combine the cited art are also unpersuasive for the reasons given above.
That is, the arguments fail to account for “the inferences and creative steps
that a person of ordinary skill in the art would employ.” See KSR, 550 U.S.
at 418.
Thus, Appellant has not shown reversible error in the Examiner’s
position that it would have been obvious for one of ordinary skill to have
used a known heating controller technique as exemplified in Nagakura’s
vertically-arranged, wafer processing reactor for predictably heating the
Takeuchi/Inoue vertically-arranged, wafer processing reactor. See KSR, 550
U.S. at 417 (the predictable use of known prior art elements or steps
performing the same functions they have been known to perform is normally
obvious; the combination of familiar elements/steps is likely to be obvious
when it does no more than yield predictable results); Ball Aerosol &
Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed.
Cir. 2009) (under the flexible inquiry set forth by the Supreme Court, the
PTO must take account of the “inferences and creative steps,” as well as
routine steps, that an ordinary artisan would employ) (emphasis omitted).
Accordingly, we sustain the Examiner’s obviousness rejections,
noting that no dependent claims are separately argued, including separately
rejected claim 10 (Appeal Br. 21).

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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
9, 11–13 103 Takeuchi, Inoue, Nagakura 9, 11–13

10 103 Takeuchi, Inoue, Nagakura, Merry 10

Overall
Outcome
9–13

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED