11831357 (B.P.A.I. Mar. 15, 2012)

Ex Parte Mui et al

Board of Patent Appeals and InterferencesMar 15, 2012

11831357 (B.P.A.I. Mar. 15, 2012)

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. 11/831,357 07/31/2007 David Mui 008553D1/ETCH/SILICON 4268 44257 7590 03/15/2012 PATTERSON & SHERIDAN, LLP - - APPM/TX 3040 POST OAK BOULEVARD, SUITE 1500 HOUSTON, TX 77056 EXAMINER ALEJANDRO MULERO, LUZ L ART UNIT PAPER NUMBER 1716 MAIL DATE DELIVERY MODE 03/15/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte DAVID MUI and WEI LIU ____________ Appeal 2011-001419 Application 11/831,357 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, CHUNG K. PAK, and JEFFREY T. SMITH, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1-12. We have jurisdiction under 35 U.S.C. Â§ 6. We AFFIRM. Appellants claim an apparatus for etching a material layer on a substrate comprising an etching chamber 410, a substrate support 416, a gas inlet 426 disposed at a top region of the etching chamber for supplying an etching gas, a gas inlet 428 disposed at an edge of the etching chamber for Appeal 2011-001419 Application 11/831,357 2 supplying a passivation gas proximate a peripheral region of the substrate, and means for forming a plasma coupled to a source of a radio-frequency power 418 (claim 1; Fig. 4). Representative claim 1, the sole independent claim on appeal, reads as follows: 1. Apparatus for etching a material layer on a substrate during fabrication of semiconductor devices in a semiconductor substrate processing system, comprising: an etching chamber; a substrate support disposed in the etching chamber; at least one gas inlet disposed at a top region of the etching chamber for supplying an etchant gas into the etching chamber; at least one gas inlet disposed at an edge of the etching chamber for supplying a passivation gas proximate a peripheral region of the substrate; and means for forming a plasma coupled to at least one source of a radio- frequency power and positioned proximate the etching chamber. Under 35 U.S.C. Â§ 102 (b), the Examiner rejects claims 1-7 and 9-12 as anticipated by Li (US 6,070,551, issued Jun. 6, 2000). Under 35 U.S.C. Â§ 103 (a), the Examiner rejects claim 8 as unpatentable over Li in view of Ishii (US 5,571,366, issued Nov. 5, 1996) and rejects claims 1-12 as unpatentable over Ishii in view of Li. We will sustain each of the above rejections for the reasons expressed in the Answer and below. Appeal 2011-001419 Application 11/831,357 3 The Â§ 102 Rejection This rejection is based on the Examiner's finding that the deposition apparatus of Li satisfies the structural limitations of the rejected claims and is capable of performing the functional limitations of these claims (Ans. 4- 6). In the record before us, Appellants do not contest with any reasonable specificity the Examiner's finding that the apparatus of Li is capable of performing the functions recited in claim 1. Instead, Appellants argue that, even if Li's deposition apparatus were capable of etching, one with ordinary skill in the art would not interpret this apparatus to be an apparatus for etching as recited in claim 1 (Br. 9-11).1 Appellants' argument is unpersuasive for the reasons fully detailed in In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1977). Contrary to the premise of this argument, the structural apparatus defined by claim 1 is known in the prior art as evidenced by Li, and this known apparatus does not become patentable simply because it is used for a new purpose (i.e., etching). For this reason and because Li's apparatus is capable of performing the functions recited in claim 1, the Examiner's anticipation rejection is proper. We sustain the Â§ 102 rejection of claims 1-7 and 9-12 as anticipated by Li. 1 Appellants' argument against the Â§ 102 rejection is directed to independent claim 1 only. Accordingly, dependent claims 2-7 and 9-12 will stand or fall with claim 1. Appeal 2011-001419 Application 11/831,357 4 The Â§ 103 Rejections Appellants' arguments against these rejections appear to be based on the belief that it is unreasonable to combine the deposition apparatus teachings of Li with the etching apparatus teachings of Ishii (Br. 11-13).2 Contrary to Appellants' apparent belief, the teachings of Ishii are not limited to an etching apparatus. Rather, the plasma processing apparatus of Ishii is expressly disclosed to be also useful as a plasma CVD apparatus (col. 29, ll. 21-25) which is the type of deposition apparatus taught by Li. It follows that Appellants fail to persuade us of error in the Examiner's proposed combination of the Li and Ishii teachings. For the reasons stated above and in the Answer, we sustain the Examiner's Â§ 103 rejections of claim 8 as unpatentable over Li in view of Ishii and of claims 1-12 as unpatentable over Ishii in view of Li. Conclusion The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§1.136(a)(1)(iv). AFFIRMED ssl 2 In contesting the Â§ 103 rejection of claims 1-12, Appellants again focus on independent claim 1 only. Therefore, with respect to this rejection, dependent claims 2-12 will stand or fall with claim 1.