14639434 (P.T.A.B. Feb. 14, 2019)

Ex Parte LIN et al

Patent Trial and Appeal BoardFeb 14, 2019

14639434 (P.T.A.B. Feb. 14, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/639,434 03/05/2015 29050 7590 02/19/2019 Thomas Omholt Patent Prosecution Agent CABOT MICROELECTRONICS CORPORATION 870 NORTH COMMONS DRIVE AURORA, IL 60504 Chih-AnLIN 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 100527(B) 3558 EXAMINER DAHIMENE, MAHMOUD ART UNIT PAPER NUMBER 1713 NOTIFICATION DATE DELIVERY MODE 02/19/2019 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): CMC_PROSECUTION@CABOTCMP.COM thomas_omholt@cabotcmp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHIH-AN LIN and ZHAN CHEN Appeal2018-003412 Application 14/639,434 Technology Center 1700 Before BEYERL YA. FRANKLIN, KAREN M. HASTINGS, and JAMES C. HOUSEL, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-3, 6-9, 11, 12, and 14--22 under 35 U.S.C. Â§ 103 as unpatentable over Kollodge (US 2007 /0093182 Al, published April 26, 2007) in view of Shi (US 2014/0273458 Al, published September 18, 2014). We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Our decision refers to the Specification ("Spec.") filed March 5, 2015, Appellant's Appeal Brief ("Appeal Br.") filed September 12, 2017, the Examiner's Answer ("Ans.") dated December 11, 2017, and Appellant's Reply Brief ("Reply Br.") filed February 8, 2018. 2 Appellant is the Applicant, Cabot Microelectronics Corporation, which isidentified in the Appeal Brief as the real party in interest (Appeal Br. 1 ). Appeal2018-003412 Application 14/639,434 STATEMENT OF THE CASE The invention relates to chemical-mechanical polishing compositions suitable for polishing tungsten surfaces (Spec. ,r 1 ). Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the subject matter on appeal. The limitation at issue is italicized. 1. A chemical-mechanical polishing (CMP) method for polishing a tungsten-containing substrate comprising abrading a surface of the substrate with a CMP composition comprising an aqueous carrier containing: (a) a polyamino compound, wherein the polyamino compound is present in the composition, at point of use, at a concentration in the range of about 5 to about 1000 parts-per- million (ppm); (b) at least one metal ion selected from a transition metal ion and a group IIIA/IV A metal ion; ( c) a chelating agent, wherein the chelating agent comprises at least one compound selected from the group consisting of malonic acid, methylmalonic acid, ethylmalonic acid, phenylmalonic acid, and hydroxyethylidene-1, 1- diphosphonic acid, and wherein the at least one metal ion and the chelating agent are present at a molar ratio of about 0.5: 1 to about 2:1; ( d) a particulate aluminum doped silica abrasive, wherein aluminum doped silica abrasive is present in the composition, at point of use, at a concentration in the range of about 0.05 to about 3 percent by weight (wt%); ( e) an oxidizing agent; and (f) optionally, an amino acid. Independent claim 16 recites a similar CMP method for polishing a tungsten-containing substrate. 2 Appeal2018-003412 Application 14/639,434 ANALYSIS We review the appealed rejection for error based upon any alleged error Appellant identifies and in light of the arguments and evidence produced thereon. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). The only issue Appellant raises in challenging the Examiner's obviousness rejection is whether the Examiner reversibly erred in concluding that it would have been obvious to modify Kollodge' s CMP method by using alumina doped silica abrasive as taught in Shi (see Appeal Br. 5---6; Reply Br. 4 ). Appellant does not otherwise challenge the Examiner's findings regarding Kollodge' s and Shi' s teachings of CMP methods and compositions for polishing tungsten-containing substrates. In addition, Appellant does not argue the claims separately. We, therefore, select claim 1 as representative; claims 2, 3, 6-9, 11, 12, and 14--22 stand or fall with claim 1. 37 C.F.R. Â§ 4I.37(c)(l)(iv) (2017). After review of the opposing positions Appellant and the Examiner articulate, the applied prior art, and Appellant's claims and Specification disclosures, we determine that Appellant's arguments are insufficient to identify reversible error in the Examiner's obviousness rejection. We determine that a preponderance of the evidence supports the Examiner's findings of fact and conclusions of law with respect to the prima facie case of obviousness. There is no dispute that Kollodge teaches a preference for a CMP composition that is substantially free of inorganic particulate ( compare Appeal Br. 4 and Reply Br. 4 with Ans. 1 O; see also Kollodge ,r,r 10 and 11 ). Based on this fact, Appellant argues that there is no suggestion to modify Kollodge's CMP method in view of Shi's teaching to include alumina doped 3 Appeal2018-003412 Application 14/639,434 silica (Appeal Br. 6). Appellant contends that, "to arrive at the claimed invention, a person of ordinary skill in the art would have needed to select only certain elements from the Kollodge reference, which teaches a polishing composition for a fixed abrasive pad preferably having no added abrasives, and combined it with Shi, which teaches many possible abrasives as equivalents" (id. at 5). Appellant, therefore, urges that the Examiner's proposed modification to Kollodge' s CMP composition "appears to read into the prior art the teachings of the invention at issue, and amounts to the impermissible use of hindsight" (id.). We disagree. Appellant's hindsight argument is not persuasive because the Examiner's reasons for combining the teachings of Kollodge and Shi are supported by the prior art disclosures themselves. See, e.g., Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1570 (Fed. Cir. 1996) ("The invention must be viewed not after the blueprint has been drawn by the inventor, but as it would have been perceived in the state of the art that existed at the time the invention was made." ( citing Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1138 (Fed. Cir. 1985))). Here, as the Examiner finds (Ans. 10), the skilled artisan would have understood from the Kollodge's teachings that, while the absence of free abrasive particles is preferred, "[i]norganic particulates may also be included in the working liquid [(CMP composition)]. These inorganic particulates may aid in the cut rate." (Kollodge ,r 40). Moreover, Kollodge teaches silica, among others, as an example of such inorganic particulates (id.). Thus, although Kollodge expresses a preference for the absence of free abrasive particles, Kollodge nonetheless teaches that such particles may be present in the CMP composition to aid in the cut rate. Merck & Co. Inc. v. Biocraft 4 Appeal2018-003412 Application 14/639,434 Laboratories Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)) ("But in a section 103 inquiry, 'the fact that a specific [embodiment] is taught to be preferred is not controlling, since all disclosures of the prior art, including unpreferred embodiments, must be considered."'); accord, In re Burckel, 592 F.2d 1175, 1179 (CCPA 1979) and In re Mills, 470 F.2d 649 (CCPA 1972). Turning to Shi, there is no dispute that Shi teaches a CMP method for polishing a tungsten-containing substrate using a CMP composition comprising abrasive particles selected from a number of equivalent abrasive particles, including silica and alumina doped silica ( compare Appeal Br. 5 and Reply Br. 4 with Ans. 6; Shi ,r 55). An express teaching need not be present in the art to support the substitution of one element for another element used for the same purpose. In re Fout, 675 F.2d 297,301 (CCPA 1982). Further, the substitution of one known element for another is obvious when the combination yields no more than a predictable result, as here (i.e., using alumina doped silica particles in Kollodge to aid in the cut rate). KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007) ("when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result"). Because Kollodge teaches silica abrasive particles may be included in the CMP composition and Shi teaches silica and alumina doped silica are equivalents for use as abrasive particles in a CMP composition for the same purpose, the ordinary artisan would have been motivated to use alumina doped silica abrasive particles in Kollodge's CMP composition. 5 Appeal2018-003412 Application 14/639,434 Because Appellant does not assert that the substitution of alumina doped silica in Kollodge's CMP composition yields more than a predictable result, nor otherwise asserts any objective evidence of nonobviousness, we are not persuaded that the Examiner reversibly erred in maintaining the obviousness rejection over the combined teachings of Kollodge and Shi. Accordingly, we affirm the stated obviousness rejection for substantially the fact findings and the reasons set forth by the Examiner in the Examiner's Answer. DECISION Upon consideration of the record, and for the reasons given above and in the Examiner's Answer, the decision of the Examiner rejecting claims 1- 3, 6-9, 11, 12, and 14--22 under 35 U.S.C. Â§ 103 as unpatentable over Kollodge in view of Shi is affirmed. No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. Â§ 1.136(a)(l). AFFIRMED 6