Ex Parte Ahn et al

Board of Patent Appeals and Interferences

Jun 17, 2009

10931365 (B.P.A.I. Jun. 17, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte KIE Y. AHN and LEONARD FORBES
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Appeal 2009-001758
Application 10/931,365
Technology Center 2800
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Decided:1 June 19, 2009
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Before JOSEPH F. RUGGIERO, MAHSHID D. SAADAT,
and THOMAS S. HAHN, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-001758
Application 10/931,365

2
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-10 and 63-75. Claims 11-48 have been withdrawn from
consideration and claims 49-62 have been canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellants’ invention relates to a method of forming a gate dielectric
including forming a layer of Pr2O3 on a substrate and forming a layer of
another lanthanide oxide onto the layer of Pr2O3 (Spec. 3). Claim 63, which
is representative of the claims on appeal, reads as follows:
63. An electronic device comprising:
a substrate; and
a dielectric layer above the substrate, the dielectric layer
including:
a layer of a first lanthanide oxide, the layer having
an amorphous layer substantially of the first lanthanide
oxide in contact with a crystalline layer of the first
lanthanide oxide; and
a layer of a second lanthanide oxide, wherein a
lanthanide oxide consists essentially of oxygen and the
lanthanide.
The Examiner relies on the following prior art reference:
Haukka US 6,660,660 B2 Dec. 9, 2003
(filed Aug. 31, 2001)
Claims 1-10 and 63-75 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Haukka.
Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Briefs and the Answer for their respective details.
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Except as noted in this decision, Appellants have not presented any
substantive arguments directed separately to the patentability of the
dependent claims. Further, in the absence of a separate argument with
respect to those claims, they stand or fall with representative independent
claim 63. See 37 C.F.R. § 41.37(c)(1)(vii).
Only those arguments actually made by Appellants have been
considered in this decision. Arguments that Appellants did not make in the
Briefs have not been considered and are deemed to be waived. See id.

ISSUE
Appellants argue that Haukka does not anticipate the rejected claims
because it does not teach the claimed features (App. Br. 9). Appellants
specifically argue that the relied-on portion of Haukka in column 9 does not
show that an amorphous layer of a lanthanide oxide is in contact with a
crystalline layer of the lanthanide oxide (App. Br. 10). Appellants assert that
Haukka merely discloses a lanthanide oxide in contact with a layer of
aluminum oxide and not in contact with another structural form of the
lanthanide oxide (id.). Therefore, Appellants’ arguments present the
following issue:
Have Appellants shown that the Examiner erred in finding that
Haukka anticipates the rejected claims by teaching an amorphous layer of
lanthanide oxide in contact with a crystalline layer of lanthanide oxide?

FINDINGS OF FACT
The following findings of fact (FF) are relevant to the issue involved
in the appeal.
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1. Haukka relates to a nanolaminate structure wherein a high-k
dielectric material is sandwiched between two layers of aluminum oxide or
lanthanide oxide used in the formation of a transistor gate dielectric or a
memory cell dielectric. (Abstract.)
2. Haukka discloses an oxide interface between two or more
materials, wherein one of the materials is a high dielectric (high-k) material,
such as ZrO2. (Col. 4, ll. 48-50.)
3. However, Haukka states that the “high-k” materials can also
include lanthanide oxides. (Col. 4, ll. 48-58; col. 9, ll. 60-65.)
4. One disclosed embodiment includes a nanolaminate consisting
of alternating crystalline and amorphous layers of metal oxides. (Col. 9, ll.
47-52.)
5. Haukka discloses that the crystal growth of a high-k metal
oxide can be interrupted with an intermediate amorphous metal oxide layer,
particularly Al2O3 or a lanthanide oxide, in a stack of dielectric layers,
forming a dielectric “nanolaminate.” (Col. 10, ll. 12-16.)
6. As shown in Figure 4, dielectric nanolaminate 110 comprises
three high-k films 112 of ZrO2, separated by intermediate interface films 113
and outer interface films 114 of Al2O3. (Col. 10, ll. 42-49.)
7. Haukka discloses that aluminum oxide films 113, 114 can be
replaced with lanthanide oxide films. Alternatively, due to the high
dielectric strength of lanthanide oxides, zirconium oxide films 112 can be
replace by lanthanide oxides. (Col. 10, ll. 54-58.)

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PRINCIPLES OF LAW
In the examination of a patent application, the Examiner bears the
initial burden of showing a prima facie case of unpatentability. In re
Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984). When that burden is met,
the burden then shifts to the Applicant to rebut. Id.; see also In re Harris,
409 F.3d 1339, 1343-44 (Fed. Cir. 2005) (finding rebuttal evidence
unpersuasive). Only if that burden is met, does the burden of going forward
shift to the applicant. In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986); In
re Wilder, 429 F.2d 447, 450 (CCPA 1970). If the Applicant produces
rebuttal evidence of adequate weight, the prima facie case of unpatentability
is dissipated. Piasecki, 745 F.2d at 1472.
Once a prima facie case is established and rebuttal evidence is
submitted, the ultimate question becomes whether, based on the totality of
the record, the Examiner carried his burden of proof by preponderance. See
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Therefore, on appeal to
the Board it is Appellants’ burden to establish that the Examiner did not
sustain the necessary burden and to show that the Examiner erred.
A rejection for anticipation requires that the four corners of a single
prior art document describe every element of the claimed invention, either
expressly or inherently, such that a person of ordinary skill in the art could
practice the invention without undue experimentation. See Atlas Powder
Co. v. IRECO Inc., 190 F.3d 1342, 1347 (Fed. Cir. 1999); In re Paulsen, 30
F.3d 1475, 1478-79 (Fed. Cir. 1994).

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ANALYSIS
Appellants’ arguments that the Examiner erred in rejecting claim 63
as being anticipated by Haukka are not persuasive.
Contrary to Appellants’ arguments (App. Br. 10), the nanolaminate
structure disclosed by Haukka includes alternate layers of high-k material
and aluminum oxide (FF 1-2) wherein the high-k material may be a
lanthanide oxide (FF 3). Appellants’ assertion (App. Br. 11-12) that the
sentence bridging columns 9 and 10 of Haukka indicates the high-k metal
oxide having crystalline layers are high-k metal oxides other than Al2O3 or a
lanthanide oxide, ignores the collective teachings of Haukka with respect to
other disclosed possible choices for a high-k material. Instead, as the
Examiner found (Ans. 15-17), Haukka teaches that the high-k material may
include lanthanide oxides due to their high dielectric strength (FF 3, 7).
We also disagree with Appellants’ argument (App. Br. 13) that
Haukka does not suggest using a crystalline layer of a lanthanide oxide as a
replacement for a layer of ZrO2. While Haukka suggests using lanthanide
oxides in place of aluminum oxide layers (FF 5, 7), the reference is very
clear that a lanthanide oxide may also be used as a high-k material to replace
the crystalline layer of ZrO2 in the nanolaminate structure (FF 3, 7).
Additionally, because Haukka describes the nanolaminate as
alternating layers of amorphous and crystalline metal oxides (FF 4), using
lanthanide oxides in place of the aluminum oxide layer and also as high-k
materials indicates that the lanthanide oxide may be used to form the
alternating crystalline and amorphous layers of metal oxides (see FF 3, 5-7).
Furthermore, contrary to Appellants’ assertion (Reply Br. 4-5) that Haukka
merely discloses replacing either Al2O3 or ZrO2 with a lanthanide oxide, the
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reference teaches using a lanthanide oxide as a high-k material (FF 2) as
well as the amorphous metal layer (FF 5).
Appellants present no separate argument for claims 1-10 and 64-75
and argue their patentability based on the same arguments discussed supra
with respect to claim 63 (App. Br. 14-15). In view of the above discussions,
since all of the claimed limitations are shown to be present in the disclosure
of Haukka, the Examiner’s 35 U.S.C. § 102(e) rejection of independent
claim 63, as well as claims 1-10 and 64-75 not argued separately from claim
63, is sustained.

CONCLUSION
Based on the findings of facts and analysis above, we conclude that
Appellants have not shown that the Examiner erred in finding that Haukka
anticipates the rejected claims by teaching an amorphous layer of lanthanide
oxide in contact with a crystalline layer of lanthanide oxide.

ORDER
The decision of the Examiner rejecting claims 1-10 and 63-75 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(a)(1)(iv).

AFFIRMED

Appeal 2009-001758
Application 10/931,365

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