Ex Parte Lu

Board of Patent Appeals and Interferences

Jul 30, 2012

11272448 (B.P.A.I. Jul. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte YIWEI LU
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Appeal 2011-001973
Application 11/272,448
Technology Center 1700
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Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-22. We have
jurisdiction under 35 U.S.C. § 6(b).
Claim 1 is illustrative:
1. A target for use in sputter depositing a layer(s) having a refractive
index (n) of from 1.6 to 1.9 on a substrate, the target comprising a target
material comprising Ti1-xSixOy where x is from about 0.05 to 0.95 and y is
from about 0.2 to 1.95 with respect to stoichiometry, and wherein the target
material comprises oxygen and more Si than Ti.
Appeal 2011-001973
Application 11/272,448

2
The Examiner relies upon the following references as evidence of
obviousness (Ans. 3):
Ando 5,110,637 May 05, 1992
Dickey 5,470,452 Nov. 28, 1995
Kida JP 08-158048 Jun. 18, 1996

Appellant’s claimed invention is directed to a target that is used in
sputter depositing a layer having the recited refractive index on a substrate.
The target material comprises Ti1-xSixOy wherein the stoichiometric amount
of O is from about 0.2 to 1.95.
The appealed claims stand rejected under 35 U.S.C. § 103(a) as
follows:
(a) claims 1-3, 9-16, and 21-22 over Ando,
(b) claims 4-8, 17, and 19-20 over Ando in view of Kida,
(c) claim 18 over Ando in view of Kida and Dickey.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejections for essentially those
reasons expressed in the Answer, and we add the following primarily for
emphasis.
There is no dispute that Ando, like Appellant, discloses a target for
use in sputter depositing a layer on a substrate, wherein the target comprises
Zr, Si, and O, and that Zr can be substituted for Ti (see col. 6, ll. 23-25 and
Fig. 1(d)). The principal argument advanced by Appellant is that Ando does
not teach a stoichiometric amount of oxygen in the claimed range from
Appeal 2011-001973
Application 11/272,448

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about 0.2 to 1.95. Appellant maintains that Ando teaches that the amount of
oxygen in the deposited layer should be between 2.1 and 40, which is
outside the claimed range. We are not persuaded by this argument.
At the outset, we find that the claimed amount of about 1.95 is not
patentably distinct from Ando’s 2.1. Furthermore, as pointed out by the
Examiner, Ando expressly teaches that the amount of oxygen in the target
may be in the range of 0-67 atomic percent, which range encompasses the
claimed range. Also, as explained by the Examiner, Appellant’s argument
regarding the composition of the deposited layer does not address the
composition of Ando’s target. While Appellant argues that one of ordinary
skill in the art would select a target that has the amount of oxygen desired in
the deposited layer, Ando teaches that some or all of the oxygen for the
deposited layer may come from the deposition atmosphere. Hence, one of
ordinary skill in the art would understand that a deposited layer having a
stoichiometric amount of oxygen of 2.1 can be obtained with a target
comprising the claimed amount of 1.95 in an oxygen atmosphere. Indeed,
Appellant acknowledges that Ando exemplifies a target comprising no
oxygen that is used in depositing an oxygen-containing film (see App. Br.
14, last para.).
Appellant also maintains that if one of ordinary skill in the art were to
substitute Ti for Zr in the Ando target “there simply is no indication whether
the modification would result in index of refraction called for in claim 1”
(App. Br. 13, last para.). However, as noted by the Examiner, Figure 1(d) of
Ando clearly evidences that a deposited layer comprising Ti, Si and O has a
refractive index within the claimed range.
Appeal 2011-001973
Application 11/272,448

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We also find no merit in Appellant’s argument that Ando teaches that
the substitution of Ti for Zr provides only adequate scratch resistance and
that “[n]owhere does Ando say that a film comprising Ti has good scratch
resistance, much less a scratch resistance as good as or better than a film
comprising Zr” (App. Br. 14, first para.). Manifestly, Ando’s clear teaching
that Ti may be substituted for Zr, and exemplification of such is sufficient to
establish the obviousness of the substitution regardless of the relative scratch
resistance resulting from the substitution.
Appellant further contends that Atofina parallels the present case “in
the sense that the very large range in Ando is not sufficiently specific to
anticipate the claimed range, particularly since no supporting analysis has
been provided” (Reply Br. 3, first para.). However, this argument is not
germane to the Examiner’s rejection which is based on obviousness under
§ 103, not anticipation under § 102.
Regarding the rejection over Ando in view of Kida, Appellant
maintains that Kida “discloses a lower amount of oxygen than is permissible
in Ando” (App. Br. 16, first para.). However, as discussed above, Ando
permits an amount of oxygen within the claimed range.
Appellant has not set forth a separate, substantive argument against
the rejection of claim 18 over Ando in view of Kida and Dickey.
As a final point, we note that Appellant bases no argument upon
objective evidence of nonobviousness, such as unexpected results.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims is
affirmed.

Appeal 2011-001973
Application 11/272,448

5
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)(iv).
AFFIRMED

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