14848115 (P.T.A.B. Mar. 9, 2018)

Ex Parte Kiehlbauch

Patent Trial and Appeal BoardMar 9, 2018

14848115 (P.T.A.B. Mar. 9, 2018)

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. 14/848,115 09/08/2015 Mark Kiehlbauch MI22-5867 3579 128753 7590 03/09/2018 Wells St. John, P.S. 601 W. Main Avenue Suite 600 Spokane, WA 99201 EXAMINER TRAN, TONY ART UNIT PAPER NUMBER 2894 MAIL DATE DELIVERY MODE 03/09/2018 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 PATENT TRIAL AND APPEAL BOARD ________________ Ex parte MARK KIEHLBAUCH ________________ Appeal 2017-006408 Application 14/848,115 Technology Center 2800 ________________ Before TERRY J. OWENS, MARK NAGUMO, and BRIAN D. RANGE, Administrative Patent Judges. Opinion for the Board by OWENS, Administrative Patent Judge. Opinion concurring by NAGUMO, Administrative Patent Judge. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellant claims a semiconductor construction. Claim 1 is illustrative: 1. A semiconductor construction, comprising: a pair of adjacent features over a semiconductor substrate; the adjacent features being spaced from one another Appeal 2017-006408 Application 14/848,115 2 by a gap; the features having outer surfaces along the gap; all of the outer surfaces of the features along the gap comprising silicon dioxide; the features being first and second lines extending lengthwise along a first direction; the gap being a trench extending lengthwise along the first direction; and alternating electrically conductive plugs and intervening materials within the trench; the electrically conductive plugs and intervening materials alternating with one another along the first direction; the intervening materials consisting of silicon nitride; the electrically conductive plugs having lateral peripheries that directly contact silicon dioxide of the outer surfaces of the features, and that directly contact silicon nitride of the intervening regions. The References Hofmann US 6,229,169 B1 May 8, 2001 Rhodes US 2004/0173912 A1 Sept. 9, 2004 Luoh US 7,382,054 B2 June 3, 2008 The Rejections The claims stand rejected as follows: claims 1, 2, 4, 5, and 8–11 under 102(a)(1) over Luoh, claims 6 and 7 under 35 U.S.C. § 103 over Luoh, claims 3, 12, 17, and 18 over Luoh in view of Hofmann or over Luoh in view of Rhodes and Hofmann, and claims 13–16, 19, and 20 under 35 U.S.C. § 103 over Luoh in view of Rhodes. OPINION We reverse the rejections. Rejection under 35 U.S.C. § 102(a)(1) The Examiner has the initial burden of establishing a prima facie case of anticipation by pointing out where all of the claim limitations appear in a single reference. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986). Appeal 2017-006408 Application 14/848,115 3 We need address only the independent claims (1 and 8). Claim 1 requires adjacent first and second lines (gate material wordlines 24) which are between spacers (30/32, 34/36) having silicon dioxide on their outer surfaces (33), extend lengthwise along a first direction (in and out of the page in Figs. 1 and 9) over a semiconductor substrate (12), and are separated by a gap (trench 28) which extends lengthwise in the first direction and contains electrically conductive plugs (91) which alternate with intervening silicon nitride-containing barriers (80, 82) along the first direction and directly contact the spacers’ outer surfaces’ silicon dioxide and the barriers’ silicon nitride (¶¶ 24, 31, 32, 42, 45; Figs. 1, 9, 10). Claim 8 has similar limitations. Luoh discloses a prior art flash memory cell comprising gate structures (210) which are separated by an electrically conductive local interconnect (141) and comprise a control gate (218) between oxide-containing sidewall spacers (230) and below a silicon nitride etch-stop layer (231), both the oxide and the silicon nitride being directly contacted by the interconnect (141) (col. 1, ll. 45–53; col. 2, ll. 2–4, 27–29; col. 5, ll. 62– 6; Fig. 1). The Examiner finds that Luoh’s Figure 1’s electrically conductive local interconnect (141) and contacts (140) on the opposite sides of the gate structures (210) alternate with the silicon nitride etch stop layers (231) in the left-to-right (widthwise) direction which the Examiner considers to correspond to the Appellant’s lengthwise direction (Final Act. 3). “‘[D]uring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification.’” In re Appeal 2017-006408 Application 14/848,115 4 Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). The Appellant’s Specification indicates that the lengthwise direction is the direction in and out of the page in Figure 1 (¶ 24) which is the direction in and out of the page, not left to right, in Luoh’s Figure 1. That meaning is consistent with the ordinary meaning of “lengthwise,” which is “in the direction of the length,”1 where “length” means “the longer or longest direction of an object.”2 The Examiner finds that “length” is the measurement or extent of something from end to end (Ans. 4). Luoh’s Figure 1’s end-to-end direction is the direction in and out of the page, not the left-to-right direction which is the widthwise direction. Thus, the Examiner has not established a prima facie case of anticipation by pointing out where all of the claim limitations appear in a single reference. Rejections under 35 U.S.C. § 103 The Examiner does not rely in the rejections under 35 U.S.C. § 103 upon any obviousness rationale regarding the limitations in independent claims 1 and 8 or the similar limitations in independent claim 13, and does not rely upon Rhodes or Hofmann for any disclosure that remedies the deficiency in Luoh as to those limitations (Final Act. 6–9). The Examiner, therefore, has not established a prima facie case of obviousness. 1 Merriam-Webster’s Collegiate Dictionary 712 (11th ed. 2003). 2 Id. Appeal 2017-006408 Application 14/848,115 5 DECISION/ORDER The rejections of claims 1, 2, 4, 5, and 8–11 under 102(a)(1) over Luoh, claims 6 and 7 under 35 U.S.C. § 103 over Luoh, claims 3, 12, 17, and 18 over Luoh in view of Hofmann or over Luoh in view of Rhodes and Hofmann, and claims 13–16, 19, and 20 under 35 U.S.C. § 103 over Luoh in view of Rhodes are reversed. It is ordered that the Examiner’s decision is reversed. REVERSED UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte MARK KIEHLBAUCH ________________ Appeal 2017-006408 Application 14/848,115 Technology Center 2800 ________________ Before TERRY J. OWENS, MARK NAGUMO, and BRIAN D. RANGE, Administrative Patent Judges. NAGUMO, Administrative Patent Judge, concurring. This case is in some sense trivial, in that it involves the interpretation of a common word (“lengthwise”) used in the ordinary way, without any indication in the record that it would have been given some special meaning by the ordinary worker in the art. In my view, however, deciding the case by implying without analysis that the terms “lengthwise” and “widthwise” (the latter of which does not appear in the appealed claims or in the supporting specification) are used by Appellants and by the applied prior art consistently in the conventional manner is, in my view, a shortcut that is not likely to lead to improved examination or prosecution of applications for patents. I therefore write separately to make express certain assumptions that, in my view, underlie the Opinion by the Majority, and to explain why, in my view, the record supports those assumptions. First, the reader of the Majority Opinion might wonder whether the Examiner’s finding regarding the meaning of the term “length” is merely an Appeal 2017-006408 Application 14/848,115 2 abbreviated Official Notice, or whether it is founded on a dictionary definition. It is the latter. Final Rejection3 10 (“The Examiner respectfully submits that length means ‘the measurement or extent of something from end to end’, Oxford Dictionaries”; Advisory Action 4 (“The Examiner respectfully submits that ‘length’ means ‘1. the measurement or extent of something from end to end or 2.the extent of something, especially as a unit of measurement, in particular’, Oxford Dictionaries”); Ans. 4 (same as in the Advisory Action). However, no copy of the definition or of the website address (and date accessed) from which the definition was obtained appears in the record. Appellants respond in the Brief on Appeal with the following definition, also said to be from the Oxford Dictionary: “The measurement or extent of something from end to end; the greater of two or the greatest of three dimensions of a body.” Appeal Br. 11. Again however, no copy or web-address is provided. A brief search of the web indicates the definition provided by Appellants is the first definition of length provided by the Oxford Living Dictionaries, English [on-line].4 My brief search did not turn up a definition corresponding precisely to the Examiner’s quoted submission. While I cannot demonstrate that the Examiner has quoted an Oxford dictionary selectively, the record indicates that the Examiner has interpreted the word “lengthwise” in light of a broad meaning of the word “length” without giving due consideration to the disclosure of the claimed invention 3 Office Action mailed June 27, 2016. 4 https://en.oxforddictionaries.com/definition/length (visited 28 February 2018). Appeal 2017-006408 Application 14/848,115 3 in the Specification. In particular, the Examiner has not cited any evidence that those skilled in the relevant arts commonly used the term “lengthwise” in the broad and idiosyncratic manner adopted by the Examiner. My reading of the Specification and the prior art of record indicates these terms have been used in the conventional way (consistent with the Majority Opinion). Thus, on the present record, I determine that the Examiner’s broad interpretation is not reasonable because it is not consistent with the Specification (or the way the terms are used by the prior art of record). To belabor the point: the harmful error was not to make a finding (the broad definition of the common word “length”) without supporting evidence.5 Rather the harmful error was to apply that broad definition without showing that the Specification or the relevant prior art did in fact not reasonably limit that meaning to the narrower definition urged by Appellants. I find in the record no plausible basis for the Examiner’s broad interpretation of the disputed claim language. Thus, I join my colleagues in reversing the appealed rejections. 5 Speaking strictly, the Examiner should have produced the dictionary definition and citation after Appellant came forward with a more complete definition that supported their claim interpretation, purportedly from the same dictionary.