10703355 (B.P.A.I. Sep. 28, 2010)

Ex Parte Furukawa et al

Board of Patent Appeals and InterferencesSep 28, 2010

10703355 (B.P.A.I. Sep. 28, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte TOSHIHARU FURUKAWA, MARK CHARLES HAKEY, STEVEN JOHN HOLMES, DAVID VACLAV HORAK, CHARLES WILLIAM KOBURGER III, and LARRY ALAN NESBIT ________________ Appeal 2009-014057 Application 10/703,355 Technology Center 2800 ________________ Before ROBERT E. NAPPI, KENNETH W. HAIRSTON, and BRADLEY W. BAUMEISTER, Administrative Patent Judges. BAUMEISTER, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-014057 Application 10/703,355 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. §§ 6(b) and 134(a) from the Examiner’s rejection of claims 1-25. We reverse. Appellants’ invention relates to a method for fabricating a metal- oxide-semiconductor (MOS) device (Abstract). The claimed methods include implanting a dopant species concurrently into the semiconductor active layer and the gate electrode at a kinetic energy such that a first projected range of the dopant species impinging the semiconductor active layer adjacent to the gate electrode lies in the insulating layer and a second projected range of the dopant species impinging the gate electrode is less than the second thickness. (Claim 1 (emphasis added)).2 Claims 1-5, 10-18, and 23-25 stand rejected under 35 U.S.C. § 102(b) as anticipated by Iwamatsu (U.S. 5,440,161; issued Aug. 8, 1995). Claims 6-9 and 19-22 stand rejected under 35 U.S.C. § 103(a) as obvious over Iwamatsu. Appellants contend, inter alia, that Iwamatsu does not anticipate the independent claims because the claims require that a dopant species be implanted into the active layer and the gate electrode concurrently (App. Br. 8). In contrast, Iwamatsu’s Figure 19 is a graph showing the concentration profile according to a secondary ion mass spectroscopy (SIMS) analysis of boron impurities that were introduced into field shield MOS transistor 16 during consecutive manufacturing steps: (1) an initial step of implanting 2 The other independent claim, claim 13, recites similar language. Appeal 2009-014057 Application 10/703,355 3 boron at high-energy, depicted in Figure 3; and (2) a subsequent step of implanting boron at a lower energy, depicted in Figure 5 (id.). The Examiner does not dispute Appellants’ assertion, but instead finds Appellants’ argument to be unpersuasive for the following reasons: “[s]ince, figure 1 is the final product, hence SIMS measurement shown in figure 19 includes all ion implantation impurities during the fabrication process” (Ans. 12); and “[the] SIMS measurement shown in figure 19 includes all process conditions, such as ion implantation impurities, thermal conditions etc. during the fabrication process” (Ans. 13). We understand, then, the Examiner to be (1) agreeing that the depicted impurity profile is the result of plural sequential steps; but (2) taking the position that only the final product, not the process, is relevant to the question of anticipation. That is, we understand the rejection to be somehow premised upon the product-by-process doctrine. However, the product-by-process doctrine has no applicability to the pending claims because they are method claims. Furthermore, the Examiner has not set forth any alternative rationale for concluding that Iwamatsu discloses a process that implants dopant species in the configuration claimed concurrently (see Ans. 3-14). For the foregoing reasons, then, Appellants have persuaded us of error in the Examiner’s anticipation rejection of claims 1-5, 10-18, and 23-25. With respect to the remaining obviousness rejection of dependent claims 6-9 and 19-22, the Examiner relies on various legal precedents for reaching the conclusion that optimizing various disclosed conditions was obvious. For the reasons explained above, though, this further reliance on case law does not cure the deficiency of the rejection over Iwamatsu. Appeal 2009-014057 Application 10/703,355 4 DECISION The Examiner’s decision rejecting claims 1-25 is reversed. REVERSED babc IBM CORPORATION ROCHESTER IP LAW DEPT. 917 3605 HIGHWAY 52 NORTH ROCHESTER, MN 55901-7829