11091285 (B.P.A.I. Jan. 30, 2012)

Ex Parte Forbes et al

Board of Patent Appeals and InterferencesJan 30, 2012

11091285 (B.P.A.I. Jan. 30, 2012)

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. 11/091,285 03/28/2005 Leonard Forbes ROUND 3.0-102 DIVDIVDIV 6882 58907 7590 01/31/2012 ROUND LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK, LLP 600 SOUTH AVENUE WEST WESTFIELD, NJ 07090 EXAMINER MAI, ANH D ART UNIT PAPER NUMBER 2829 MAIL DATE DELIVERY MODE 01/31/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte LEONARD FORBES, KIE Y. AHN, and JEROME MICHAEL ELDRIDGE ________________ Appeal 2009-010211 Application 11/091,285 Technology Center 2800 ________________ Before ALLEN R. MacDONALD, ROBERT E. NAPPI, and THOMAS S. HAHN, Administrative Patent Judges. HAHN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-010211 Application 11/091,285 2 Appellants invoke our review under 35 U.S.C. § 134(a) from the final rejection of claims 35-45. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appealed independent claim 35 is exemplary and reads: 35. A capacitor structure comprising a dielectric region operatively positioned between first and second capacitor electrodes, the dielectric region consisting of: a silicon-dioxide-comprising layer; a first aluminum-comprising layer having a thickness between 5 Å and 15 Å; and a second aluminum-comprising layer having a thickness between 5 Å and 15 Å, wherein the composition of the first and second aluminum- comprising layers are different from one another. Rejection1 The Examiner, under 35 U.S.C. § 103(a), rejected claims 35-45 as obvious over a combination of Ri (JP 2000-058777 A; Feb. 25, 2000)2 and Kim (US 6,335,240 B1; Jan. 1, 2002) (Final Action 2-5). Appellants’ Contentions Appellants argue Ri fails to teach or fairly suggest claim 35 recited structure, namely first and second aluminum-comprising layers that are different and that are between 5 Å and 15 Å thick (App. Br. 4-5; Reply Br. 2). 1 Appellants argue the patentability of independent claim 35 (App. Br. 3-5; Reply Br. 2-5) and do not separately argue dependent claims 36-45 (App. Br. 5). 2 The English translation of this reference in the record is prepared by machine. Appeal 2009-010211 Application 11/091,285 3 Issue Did the Examiner err in rejecting claim 35 as being obvious because Ri fails to teach or fairly suggest claim 35 disputed limitations? ANALYSIS We reviewed the Examiner’s rejection of claim 35 in light of Appellants’ contentions, and we disagree with Appellants’ conclusion. The disputed claim 35 limitations cover a capacitor structure comprising “a first aluminum-comprising layer having a thickness between 5 Å and 15 Å; and a second aluminum-comprising layer having a thickness between 5 Å and 15 Å, wherein the composition of the first and second aluminum-comprising layers are different from one another.” Appellants rely on these limitations and contend Ri is deficient because instead of first and second layers having the recited thickness range the reference teaches an aluminum compound dielectric layer made of 1.1 Å layers of duplicate films (App. Br. 4). The Examiner references Ri paragraph [0025] (Ans. 7) to respond to Appellants’ contention that Ri teaches an aluminum compound dielectric layer, and the Examiner finds the reference teaches deposition of an alumina (Al2O3) film 103 and an aluminum nitride (AlN) film 104 as separate layers not as a compound layer. Reviewing Ri, we agree and adopt the Examiner’s finding that “[t]he dielectric material of Ri is clearly defined as a layer of alumina and a layer of aluminum nitride” (Ans. 8) (see ¶ [0025]; Fig. 4). Therefore, we conclude that Appellants’ contention is inapposite that Ri teaches a “mixture of Al2O3/AlN[] not layers of different compositions” (Reply Br. 3). Appeal 2009-010211 Application 11/091,285 4 Citing In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (Ans. 9), the Examiner responds to Appellants’ contention that Ri is deficient by failing to teach or suggest alumina and aluminum nitride layers having thicknesses between 5 Å and 15 Å (App. Br. 5). The Examiner pivotally identifies that Appellants have not submitted evidence that the claimed layer thickness range is critical, e.g., produces unexpected results (Ans. 9). Further, the Examiner notes that our reviewing court has held that where the general conditions of a claim are disclosed in prior art, it is not inventive to discover optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456 (CCPA 1955) (citations omitted) (Ans. 8). Based on our review of the record, we do not find Appellants have submitted any evidence directed to the claimed thickness for aluminum- comprising layers as producing any device with unexpected performance or operation results. Further, we find Appellants’ Specification discloses: The dielectric material 40 [e.g., AlN, AlON, or AlO (“with the listed compounds being described in terms of chemical constituents rather than stoichiometry” (Spec. 16:2-6))] can comprise a thickness of, for example, from greater than 0Å to less than 40Å, such as, for example, a thickness of from 5Å to 15Å, or a thickness of from 20Å to 40Å, or a thickness of from 10Å to 20Å. The desired thickness can depend on the dielectric constant of the dielectric material 40, and on a desired capacitance of a capacitor structure ultimately formed to comprise dielectric material 40. (Spec. 16:6-12). Based on this and other related Specification disclosures, we find Appellants have acknowledged that known routine techniques are applicable for using claimed aluminum-comprising layers, such as taught by Ri, including determining layer thicknesses to construct capacitors having Appeal 2009-010211 Application 11/091,285 5 desired capacitances.3 We, therefore, conclude that Appellants’ contention that Ri is deficient in teaching or suggesting claimed layer thickness ranges is unavailing. Gardner v. TEC Sys., Inc., 725 F.2d 1338, 1349 (Fed. Cir. 1984) (It is not inventive to claim dimensional limitations that specify a device which performs and operates as taught in prior art.). For the foregoing reasons, we sustain the rejection of independent claim 35 and we also sustain the rejection of dependent claims 36-45 that are not separately argued. DECISION The Examiner’s decision rejecting claims 35-45 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)(v). AFFIRMED babc 3 See Spec. 13:15-23; 21:1-15; 22:16-23:4; 23:8-24:3.