Ex Parte Leclair et al

Patent Trial and Appeal Board

Mar 15, 2017

12844857 (P.T.A.B. Mar. 15, 2017)

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.
12/844,857 07/28/2010 Timothy LECLAIR 2010-028USORG 8867
144019 7590 03/17/2017
RrnaHonm T imiteH
EXAMINER
One Freedom Square NADAV, ORI
11951 Freedom Drive, 13 th Floor
Reston, VA 20191 ART UNIT PAPER NUMBER
2811
NOTIFICATION DATE DELIVERY MODE
03/17/2017 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):
j booth @ volentine. com
cjohnson @ volentine. com
iplaw @ volentine. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY LECLAIR and DAVID MARTIN
Appeal 2015-006373
Application 12/844,857
Technology Center 2800
Before LINDA M. GAUDETTE, JAMES C. HOUSEL, and
WESLEY B. DERRICK, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner’s decision finally rejecting claims 1—13 and 20.3 We have
jurisdiction over the appeal. 35 U.S.C. § 6(b).
We AFFIRM.
1 Our Decision refers to the Specification (“Spec.”) filed July 28, 2010,
Appellants’ Appeal Brief (“Appeal Br.”) filed February 11, 2015, the
Examiner’s Answer (“Ans.”) delivered April 9, 2015, and Appellants’ Reply
Brief (“Reply Br.”) filed June 9, 2015.
2 According to Appellants, the real party in interest is Avago Technologies
Wireless IP (Singapore) PTE., LTD. Appeal Br. 3.
3 Claims 14—19 are also pending, but have been withdrawn from
consideration and are not before us in this appeal. Appeal Br. 3.
Appeal 2015-006373
Application 12/844,857
STATEMENT OF THE CASE
The invention relates to a micro-electromechanical systems (MEMS)
transducer device mounted to a package substrate, wherein the transducer is
formed on a transducer substrate with a stress mitigation structure (SMS)
between the package and transducer substrates. Spec. 14. The SMS
reduces stress induced on the transducer substrate due to mismatched
coefficients of thermal expansion (CTEs) between the package and
transducer substrates. Id.
Claim 1, reproduced below from the Claims Appendix of the Appeal
Brief, is illustrative of the subject matter on appeal.
1. A micro-electromechanical systems (MEMS) transducer
device mounted to a package substrate, the device comprising:
an active transducer formed on a transducer substrate;
and
a stress mitigation structure between the transducer
substrate and the package substrate, the stress mitigation
structure reducing stress induced on the transducer substrate
due to mismatched coefficients of thermal expansion (CTEs) of
the transducer substrate and the package substrate, respectively.
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Application 12/844,857
REJECTIONS
The Examiner maintains, and Appellants request review of, the
following grounds of rejection:
1. Claims 1—4 and 8—10 under 35 U.S.C. § 102(b) (pre-AIA) as
anticipated by Inaba;4
2. Claims 1—3, 8, and 10 under 35 U.S.C. § 102(b) (pre-AIA) as
anticipated by Long;5
3. Claims 5—7 and 11—13 under 35 U.S.C. § 103(a) (pre-AIA) as
unpatentable over Inaba;
4. Claims 2, 4—7, 9, and 11—13 under 35 U.S.C. § 103(a) (pre-
AIA) as unpatentable over Long; and
5. Claim 20 under 35 U.S.C. § 103(a) (pre-AIA) as unpatentable
over Inaba or Long, each in view of Takeuchi.6
ANALYSIS
Rejection 1: Anticipation by Inaba
Appellants argue the claims under this rejection as a single group,
focusing on the limitations of claim 1 only. Pursuant to the provisions of
37 C.L.R. § 41.37(c)(iv), claims 2—4 and 8—10 stand or fall with claim 1.
The Examiner finds Inaba teaches the MEMS transducer device of
claim 1. Ans. 2—3. In particular, the Examiner finds Inaba teaches the
device is mounted to a package substrate 11,7 and includes active transducer
13A, 15A formed on transducer substrate 12, and stress mitigation structure
4 US 2009/0179287 Al, published July 16, 2009.
5 US 2004/0041254 Al, published March 4, 2004.
6 US 6,217,979 Bl, issued April 17, 2001.
7 Throughout this Decision, for clarity, we present labels to elements in
figures in bold font, regardless of their presentation in the original document.
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Application 12/844,857
11S between package substrate 11 and transducer substrate 12. Id. at 2. The
Examiner further finds Inaba teaches transducer substrate 12 may be silicon
nitride having a first CTE of 3.2, package substrate 11 may be sapphire
having a second CTE of 8.6, and stress mitigation structure 11S may be
silicon oxide having a third CTE of 0.5. Id. As such, the Examiner finds
Inaba teaches mismatched CTEs of the package and transducer substrates,
and the third CTE of the stress mitigation structure is less than both the first
and second CTEs of the transducer and package substrates, and the second
CTE of the package substrate is greater than the first CTE of the transducer
substrate. Id. at 2—3. Moreover, because Inaba’s stress mitigation structure
is made from silicon oxide which the Examiner finds is the same material
used by Appellants for the stress mitigation structure, the Examiner finds
Inaba’s stress mitigation structure reduces stress induced on the transducer
substrate due to mismatched CTEs of the transducer and package substrates.
Id.
Appellants contend the Examiner erred in finding Inaba teaches the
device of claim 1 because Inaba fails to teach that the element separation
layer 1 IS is a stress mitigation structure that reduces stress induced on the
transducer substrate due to mismatched CTEs of the transducer and package
substrates. Appeal. Br. 6—7. Indeed, Appellants argue that Inaba fails to
disclose any relationship between package substrate 11, transducer substrate
12, and element separation layer 11S. Id. at 7. Moreover, Appellants urge
that the Examiner failed to provide the source of the cited CTEs, and that
these cited CTEs are in differing units of measure and are not comparable.
Id. at 8. With regard to the Examiner’s reference to Inaba’s element
separation layer 11S being made of the same material as Appellants’,
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Application 12/844,857
Appellants assert that Inaba’s disclosed process for forming this layer,
LOCOS, generally forms silicon dioxide, but can also form less complete
oxides. Id. at 8—9. As such, Appellants argue it is unclear what Inaba’s
element separation layer 1 IS is made of. Id. at 9.
Appellants’ arguments are unpersuasive to demonstrate reversible
error. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[E]ven assuming
that the examiner had failed to make a prima facie case, the Board would not
have erred in framing the issue as one of ‘reversible error.’”). We first note
Appellants’ argument that it is unclear if the Examiner’s cited CTEs are in
units of ppm/°K or ppm/°C lacks merit because these units are equivalent
and yield identical values, i.e., a one degree rise on the Celsius scale is
identical to a one degree rise on the Kelvin scale.8
Moreover, Appellants’ attempt to challenge the Examiner’s cited CTE
values on the basis of the lack of a source for these values is likewise
without merit and untimely. “From the standpoint of patent law, a
compound and all of its properties are inseparable; they are one and the same
thing.” In re Papesch, 315 F.2d 381, 391 (CCPA 1963). In addition, the
Examiner notes (Ans. 16), without dispute, that the recitation of the CTE
values occurred first in the Non-Final Office Action delivered May 29, 2014,
but Appellants did not challenge these values until submission of the After-
Final Amendment of November 19, 2014. In this regard, we take notice of
the fact that these CTE values, being inseparable from the compound, are
capable of instant and unquestionable demonstration. In re Ahlert, 424 F.2d
8 The NIST Reference on Constants, Units, and Uncertainty,
http://physics.nist.gov/cuu/Units/kelvin.html (last visited on February 28,
2017) (“the degree Celsius, symbol °C, which is by definition equal in
magnitude to the [degree] kelvin.”).
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Application 12/844,857
1088, 1091 (CCPA 1970). As Appellants’ challenge of these CTE values
was untimely, it was appropriate for the Examiner to consider these values
admitted prior art. MPEP § 2144.03(C). Notwithstanding Appellants’
untimely challenge, we further note that Appellants’ own argument confirms
two of the three values provided by the Examiner, i.e., that the CTE of
silicon nitride is 3.2 ppm/°C and that the CTE of silicon dioxide (“which is
the most likely product formed by LOCOS that is used to form the element
separation layer 11S”) is 0.56 ppm/°K.9 Appeal Br. 8. As to the final CTE
value of 8.6 for sapphire recited by the Examiner, Appellants fail to provide
any objective reasoning or evidentiary showing casting any doubt on the
accuracy of this value.
In addition, Appellants’ assertion that it is unclear what Inaba’s
element separation layer 11S is made of, because Inaba’s disclosed process
for forming this layer, LOCOS, generally forms silicon dioxide, but can also
form less complete oxides, is similarly without merit. Appellants admit the
most likely product formed by LOCOS is silicon dioxide. Id. Moreover,
Appellants do not provide any persuasive technical reasoning or evidentiary
showing that the material formed by Inaba’s LOCOS process is not silicon
dioxide or primarily silicon dioxide. See, e.g., In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (“Attorney’s argument. . . cannot take the place of
evidence.”). Thus, Appellants fail to provide any objective basis for
reversible error in the Examiner’s finding that Inaba teaches the element
separation layer 11S is made of silicon dioxide, one of the materials
Appellants disclose for the stress mitigation structure.
9 As we found earlier, the units, “ppm/°C” and “ppm/°K”, are equivalent.
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The Examiner’s anticipation rejection, as we understand it, relies not
only on Inaba’s teaching that layer 11S functions to separate or isolate the
transducer device from the surrounding structure, but also upon the materials
in common with Appellants’ for package substrate 11, transducer substrate
12, and element separation layer 11S, for supporting the finding that the
CTEs of the substrates are necessarily mismatched and that layer 11S
functions as a stress mitigation structure necessarily reducing stress induced
on the transducer substrate due to this mismatch. Appellants have not
identified reversible error in the Examiner’s findings regarding the materials
of Inaba’s package substrate, transducer substrate, and element separation
layer. Nor have Appellants identified reversible error in the Examiner’s
finding that these materials are in common with Appellants’ disclosed
materials for each of the substrates and the stress mitigation layer. Because
a compound and its properties, including its CTE, are inseparable (see
Papesch, supra), it necessarily follows that there is CTE mismatch between
Inaba’s substrates, wherein the CTE of the package substrate being greater
than the CTE of the transducer substrate and the CTE of the element
separation layer being less than the CTEs of both the substrates. In addition,
because Inaba’s materials for the package substrate, the transducer substrate,
and the element separation layer are common to Appellants’ corresponding
structures, it also necessarily follows, i.e., is inherent, that Inaba’s element
separation layer functions as a stress mitigation structure which reduces
stress induced on the transducer substrate due to mismatch between the
CTEs of the package and transducer substrates.
“[Apparatus claims cover what a device is, not what a device
does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468
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(Fed. Cir. 1990). Therefore, the patentability of an apparatus claim depends
on the claimed structure, not on the use or purpose of that structure
(Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed.
Cir. 2002)), or the function or result of that structure. In re Danly, 263 F.2d
844, 848 (CCPA 1959); In re Gardiner, 171 F.2d 313, 315-16 (CCPA
1948). Although “[a] patent applicant is free to recite features of an
apparatus either structurally or functionally[,] . . . choosing to define an
element functionally, i.e., by what it does, carries with it a risk.” In re
Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). Where, as here, the
Examiner establishes a reasonable belief that a property or characteristic
recited in the claims would have been inherent to the apparatus, the burden
of proof shifts to Appellants to show that this characteristic or property is not
possessed by the prior art. Id. Appellants have not provided any evidence
or persuasive technical reasoning to refute the Examiner’s reasonable
determination that Inaba’s element separation layer 11S would inherently
function as a stress mitigation structure reducing stress induced on
transducer substrate 12 due to mismatch between the CTEs of the substrates.
The express, implicit, and inherent disclosures of a prior art reference
may be relied upon in the rejection of claims under 35 U.S.C. §§ 102 or 103.
In re Napier, 55 F.3d 610, 613 (Fed. Cir. 1995). Further, where an inherent
property or function corresponds to a new benefit or characteristic otherwise
in the prior art, as here, recognition of such in the prior art is not required.
Abbott Labs. v. Baxter Pharm. Products, Inc., 471 F.3d 1363, 1367 (Fed.
Cir. 2006) (“[A] reference may anticipate even when the relevant properties
of the thing disclosed were not appreciated at the time.”); Perricone v.
Medicis Pharm. Corp., 432 F.3d 1368, 1377 (Fed. Cir. 2005) (“In some
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cases, [an] inherent property corresponds to a claimed new benefit or
characteristic of an invention otherwise in the prior art. In those cases, the
new realization alone does not render the old invention patentable. . . . Thus,
when considering a prior art method, the anticipation doctrine examines the
natural and inherent results in that method without regard to the full
recognition of those benefits or characteristics within the art field at the time
of the prior art disclosure.”).
Appellants’ next argue that Inaba fails to enable this function because
it is not described and, therefore, Inaba cannot anticipate Appellants’ claim 1
(Appeal Br. 9—10). However, Appellants mischaracterize the legal
requirements for anticipation. While a reference must be enabling for
purposes of anticipation, enablement merely extends to whether one of
ordinary skill in the art is able to make the invention as described in the
reference. Impax Labs., Inc. v. Aventis Pharms. Inc., 468 F.3d 1366, 1381
(Fed. Cir. 2006). All that is required of Inaba as prior art is a teaching of
how to make the device enabling the ordinary artisan to reproduce the device
without undue experimentation. Appellants do not contend and, therefore,
fail to establish, that Inaba lacks enablement as to how to make the device
described therein.
Accordingly, we sustain the Examiner’s anticipation rejection based
on Inaba.
Rejection 2: Anticipation by Long
Appellants argue the claims under this rejection as a single group,
focusing on the limitations of claim 1 only. Pursuant to the provisions of
37 C.F.R. § 41.37(c)(iv), claims 2, 3, 8, and 10 stand or fall with claim 1.
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The Examiner finds Long teaches the MEMS transducer device of
claim 1. Ans. 3^4. In particular, the Examiner finds Long teaches the
device is mounted to a package substrate 12, and includes active transducer
16 formed on transducer substrate 26, and stress mitigation structure 24, 34
between package substrate 12 and transducer substrate 26. Id. The
Examiner further finds Long teaches transducer substrate 26 having a first
CTE of 4, package substrate 12 having a second CTE of 7, and stress
mitigation structure 24, 34 having a third CTE of 1—7. Id. at 4. As such, the
Examiner finds Inaba teaches mismatched CTEs of the package and
transducer substrates, and the third CTE of the stress mitigation structure is
less than both the first and second CTEs of the transducer and package
substrates, and the second CTE of the package substrate is greater than the
first CTE of the transducer substrate, and that the stress mitigation structure
reduces stress induced on the transducer substrate due to the mismatched
CTEs of the transducer and package substrates. Id.
Appellants contend the Examiner erred in finding Long teaches the
device of claim 1 because Long fails to teach that the device includes an
active transducer. Appeal Br. 10-11. In addition, Appellants argue that
Long fails to teach a stress mitigation structure that reduces stress induced
on the transducer substrate due to mismatched CTEs of the transducer and
package substrates. Id. at 11. Indeed, Appellants urge that Long describes
mitigation of torsional stress, but does not describe mitigation of stress
induced by mismatched CTEs of the substrates. Id. Moreover, Appellants
urge that the Examiner failed to provide the source of the cited CTEs, and
that these cited CTEs are in differing units of measure and are not
comparable. Id. As to the Examiner’s finding that Long’s package substrate
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Application 12/844,857
12 has a CTE of 7, Appellants assert Long fails to support this finding. Id.
Finally, Appellants contend that Long teaches the package and transducer
substrates have substantially the same CTE, rather than mismatched CTEs as
the Examiner found. Id. at 12.
Appellants’ arguments are unpersuasive to demonstrate reversible
error. Jung, supra. Initially, as we explained above, Appellants’ argument
that it is unclear if the Examiner’s cited CTEs are in units of ppm/°K or
ppm/°C lacks merit because these units are equivalent and yield identical
values.10 Moreover, again as we explained above, Appellants’ attempt to
challenge the Examiner’s cited CTE values on the basis of the lack of a
source for these values is likewise without merit and untimely. See Ans. 16;
see also Papesch, supra. Further, as explained above, we take notice of the
fact that these CTE values, being inseparable from the compound, are
capable of instant and unquestionable demonstration. Ahlert, supra. As
Appellants’ challenge of these CTE values was untimely, it was appropriate
for the Examiner to consider these values admitted prior art. MPEP §
2144.03(C). Notwithstanding Appellants’ untimely challenge, the
Examiner’s findings with regard to the CTE values are well supported by
Long’s disclosure. Long 139 (“if the die 16 is produced from silicon (which
has a CTE of 4 ppm per degree Celsius) and the package 12 is produced
from aluminum oxide (which has a CTE of about 7 ppm per degree Celsius),
then the isolator 24 illustratively is produced from a material having a CTE
between about 1 ppm per degree Celsius and about 7 ppm per degree
Celsius.”). Although Long teaches another embodiment wherein the CTEs
10 In fact, as the Examiner correctly finds (Ans. 19), Long’s reported CTEs
all have the same units, “ppm per degree Celsius.” Long 139.
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of the transducer and package substrates are matched as Appellants argue
(Appeal Br. 12; Long 134), Appellants ignore the above-mentioned
alternative embodiment of Long in paragraph 39 which clearly teaches
package substrate 12 having a CTE of 7 and transducer substrate 26 having a
CTE of 4. Appellants fail to provide any objective reasoning or evidentiary
showing casting any doubt on the accuracy of these findings.
As to Appellants’ argument that Long fails to teach an active
transducer, we adopt the Examiner’s findings in this regard as if they were
our own. In particular, the Examiner responds that Long teaches a MEMS
device, which “typically have a structure suspended above a substrate, and
associated electronics that both senses movement of the suspended structure
and delivers the sensed movement data to one or more external devices.”
Ans. 17—18 (quoting Long 13) (emphasis omitted). The Examiner further
finds that Long teaches conventional MEMS structure to sense movement or
vibration and deliver a signal indicative of that movement to an external
device. Id. at 18 (citing Long 120). Because Appellants disclose that
“[transducers generally convert electrical signals to mechanical signals or
vibrations, and/or mechanical signals or vibrations to electrical signals,” the
Examiner correctly finds that Long’s MEMS device, which converts
mechanical movement or vibrations to electrical signals, is an active
transducer. Spec. 11. Appellants fail to identify reversible error in these
findings, either by persuasive technical reasoning or evidentiary showing.
Finally, Appellants’ argument that Long fails to teach a stress
mitigation structure that reduces stress induced on the transducer substrate
due to mismatched CTEs of the transducer and package substrates fails to
persuade us of reversible error. The Examiner’s anticipation rejection, as we
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understand, relies not only on Long’s teaching that isolator 24 and adhesive
34 function to absorb and attenuate stress, but also upon Long’s disclosure in
paragraph 39 which clearly recites mismatching CTEs of the package and
transducer substrates with stress mitigation structure 24, 34 therebetween.
See Ans. 19. Because a compound and its properties, including its CTE, are
inseparable (see Papesch, supra), it necessarily follows, i.e., is inherent, that
Long’s a stress mitigation structure necessarily reduces stress induced on the
transducer substrate due to mismatch between the CTEs of the package and
transducer substrates. Appellants have not provided any evidence or
persuasive technical reasoning to refute the Examiner’s findings. See
Schreiber, supra.
Accordingly, we sustain the Examiner’s anticipation rejection based
on Long.
Rejections 3 and 4: Obviousness over either Inaba or Long
Appellants do not raise any substantive arguments against either of
these rejections, instead relying on arguments raised with regard to the
respective anticipation rejections of claim 1. Appeal Br. 16. For the reasons
discussed above, we do not find those arguments persuasive of reversible
error. Jung, supra. Accordingly, we sustain each of these rejections as well.
Rejection 5: Obviousness of claim 20 over Inaba or Long, either of which
further in view of Takeuchi
Independent claim 20 is reproduced below from the Claims Appendix
to the Appeal Brief:
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20. A packaged micro-electromechanical systems (MEMS)
transducer device, comprising:
a transducer substrate having a first coefficient of thermal
expansion (CTE);
a membrane on the transducer substrate over a cavity
formed through the transducer substrate;
a resonator stack on the membrane; and
a stress mitigation structure between the transducer
substrate and a package substrate having a second CTE greater
than the first CTE, wherein the stress mitigation structure has a
third CTE that is less than either the first CTE or the second
CTE, the stress mitigation structure counter-acting physical
responses of the package substrate to temperature fluctuations
to reduce stress induced onto the transducer substrate.
The Examiner finds each of Inaba and Long teach the MEMS
transducer device of claim 20, except that neither reference explicitly
teaches a resonator comprising a membrane on the transducer substrate over
a cavity formed through the transducer substrate and a resonator stack on the
membrane. Ans. 8—9. The Examiner finds Takeuchi teaches a resonator
comprising a membrane 10 on a transducer substrate 4 over a cavity formed
through the transducer substrate and a resonator stack 18 on the membrane.
Id. at 9. The Examiner concludes it would have been obvious to form either
Inaba’s or Long’s transducer as a resonator including a membrane on the
transducer substrate over a cavity formed therethrough with a resonator
stack on the membrane as a conventional method of forming the resonator as
taught by Takeuchi. Id. at 9—10.
Appellants argue that the Examiner’s basis for combining Takeuchi
with either Inaba or Long is improper, in that “there is no basis present as to
why it is necessary to ‘use the device ... by using a conventional method of
forming a resonator.’” Appeal Br. 18. In response, the Examiner states that
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the ordinary artisan would have been motivated to combine Takeuchi’s
resonator stack and membrane in the devices of Inaba and Long because
Takeuchi teaches such structure is known and is relatively small-sized,
inexpensive, and can be used as an electromechanical transducer having high
reliability, high operating response, and a relatively large amount of
displacement by application of a low voltage with a relatively large
magnitude of force generated. Ans. 23 (citing Takeuchi 1:53—2:6).
Appellants do not address or otherwise respond to these findings, either in
the Appeal Brief or the Reply Brief. We are, therefore, satisfied that the
Examiner has properly established by a preponderance of the evidence that
the MEMS transducer device of claim 20 would have been obvious over
Inaba in view of Takeuchi and Long in view of Takeuchi.
CONCLUSION
Upon consideration of the record, and for the reasons given above and
in the Answer,
the rejection of claims 1—4 and 8—10 under 35 U.S.C. § 102(b) as
anticipated by Inaba is affirmed',
the rejection of claims 1—3, 8, and 10 under 35 U.S.C. § 102(b) as
anticipated by Long is affirmed',
the rejection of claims 5—7 and 11—13 under 35 U.S.C. § 103(a) as
unpatentable over Inaba is affirmed',
the rejection of claims 2, 4—7, 9, and 11—13 under 35 U.S.C. § 103(a)
as unpatentable over Long is affirmed', and
the rejection of claim 20 under 35 U.S.C. § 103(a) as unpatentable
over Inaba or Long, each further in view of Takeuchi, is affirmed.
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DECISION
The decision of the Examiner rejecting claims 1—13 and 20 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).
AFFIRMED
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