Ex Parte O et al

Patent Trial and Appeal Board

Sep 13, 2017

11629943 (P.T.A.B. Sep. 13, 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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/629,943 04/13/2007 Anthony O'Hara Q103245 9734
23373 7590 09/15/2017
SUGHRUE MION, PLLC
2100 PENNSYLVANIA AVENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
EXAMINER
DUCLAIR, STEPHANIE P.
ART UNIT PAPER NUMBER
1713
NOTIFICATION DATE DELIVERY MODE
09/15/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY O’HARA, MICHAEL LEAVY,
GRAEME PRINGLE, and ANTHONY MCKIE1
Appeal 2016-007150
Application 11/629,943
Technology Center 1700
Before BRADLEY R. GARRIS, DONNA M. PRAISS, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 43^48 and 50-64. We have jurisdiction under
35 U.S.C. §6.
We AFFIRM.
1 MEMSSTAR LIMITED is identified as the real party in interest. App.
Br. 2.
Appeal 2016-007150
Application 11/629,943
Appellants claim a method of etching microstructures in a process
chamber 11 comprising the steps of selecting an operating partial pressure of
an etching material vapor for the process chamber, transforming an etching
material in an etching material chamber 27 from a first state into the etching
material vapor, passing a carrier gas through the etching material chamber to
pick up etching material vapor for transport to the process chamber,
continuously flowing the etching material vapor to the process chamber and
maintaining the selected operating partial pressure of the etching material
vapor in the process chamber by controlling removal of the etching material
vapor by “dumping from the process chamber” (sole independent claim 43,
Figs. 3, 4, 6).
A copy of representative claim 43, taken from the Claims Appendix of
the Appeal Brief, appears below.
43. A method of etching one or more microstructures located within a
process chamber, the method comprising the steps of:
a) selecting an operating partial pressure of an etching material vapour
for the process chamber, the etching material housed within an etching
material chamber;
b) transforming an etching material from a first state into the etching
material vapour;
c) supplying a carrier gas to the process chamber via the etching
material vapour to allow the transportation of the etching material vapour to
the process chamber, by passing the carrier gas through the etching material
chamber to pick up etching material vapour, the carrier gas transporting the
etching material vapour from the etching material chamber to the process
chamber; and
d) while controlling the carrier gas flow to the etching material
chamber in order to provide a controlled supply of etch material vapour to
the process chamber, having a continuous flow of the etching material
vapour from the etching material chamber to the process chamber,
maintaining the selected operating partial pressure of the etching material
vapour in the process chamber by controlling removal of the etching
material vapour by dumping from the process chamber.
2
Appeal 2016-007150
Application 11/629,943
The $ 103 Rejections
Under 35 U.S.C. § 103(a), the Examiner rejects the following as
unpatentable:
(1) independent claim 43 over Patel et al. (US 2002/0195423 Al,
published Dec. 26, 2002) (“Patel”) in view of McQuarrie et al. (EP 0 878
824 A2, published Nov. 18, 1998) (“McQuarrie”) and Guenther (US
2004/0025370 Al, published Feb. 12, 2004) as well as dependent claims 44—
46, 52—55, and 58—60 over these references alone or in combination with
additional prior art references; and
(2) independent claim 43 over Lebouitz et al. (US 2002/0033229 Al,
published Mar. 21, 2002) in view of McQuarrie and Guenther as well as
dependent claims 47, 48, 50, 51, and 56—64 over these references alone or in
combination with additional prior art references.2
We will sustain the Examiner’s § 103 rejections for the reasons
expressed in the Final Action, the Answer, and below.
In rejecting claim 43, the Examiner concludes that it would have been
obvious to modify the respective methods of Patel and Lebouitz to include
supplying the process/etching chamber with a continuous flow of etching
material vapor/carrier gas mixture as taught by McQuarrie and to provide
this mixture by passing carrier gas through the etching material chamber to
pick up etching material vapor as taught by Guenther (Final Action 6—7, 11—
12).
2 Appellants do not present separate arguments specifically directed to the
dependent claims rejected under § 103 (App. Br. 5—11). Therefore, with
respect to these rejections, the dependent claims will stand or fall with their
parent independent claim 43.
3
Appeal 2016-007150
Application 11/629,943
Concerning the claim 43 limitation “passing the carrier gas through
the etching material chamber,” Appellants concede that McQuarrie discloses
the carrier gas may be mixed with etching material vapor prior to
introduction into the process/etching chamber (App. Br. 7) and further
concede that Guenther discloses passing carrier gas through an etching
material chamber/canister to obtain a carrier gas/etching material vapor
mixture for the process chamber (id. ). However, Appellants argue that
Guenther is not concerned about maintaining a selected operating partial
pressure or a continuous flow such that a person having ordinary skill would
not have combined Guenther’s non-continuous system with the other applied
references (id. at 7—8; Reply Br. 3).
The deficiency of Appellants’ argument is that it attacks the Guenther
reference individually whereas the rejections are based on the teachings of
Patel or Lebouitz in combination with McQuarrie and Guenther. See In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.”). In
this regard, we emphasize that the Examiner relies on the other applied
references, rather than Guenther, for the claim features of a selected
operating partial pressure and a continuous flow. We further emphasize that
Appellants do not explain with any reasonable specificity why a person
having ordinary skill would not have combined Guenther with the other
applied references in the manner proposed by the Examiner.
Appellants also argue that, “by the method of claim 43, the etching
material vapor is dumped out of the process chamber . . . [whereby] the
etching material is not recirculated” (App. Br. 8) whereas “the roughening
4
Appeal 2016-007150
Application 11/629,943
pump assembly 14 of McQuarrie provides recirculation (instead of
dumping)” {id.).
However, we agree with the Examiner that “Appellants’] invention as
currently claimed . . . does not prohibit recirculation of the carrier gas or
etching material vapour” (Ans. 7) and that the claim 43 language “dumping
[etching material vapor] from the process chamber” is properly interpreted
in light of Appellants’ original disclosure to mean Dumping etching material
vapor from the process chamber {id.). An artisan would so interpret this
claim language in view of the disclosures identified by Appellants {see, e.g.,
App. Br. 5) which recite “XeF2 vapour removed by pumping” (Spec. 25:10—
11) and “the amount of XeF2, if any, being pumped away, as presented
schematically in Figure 6” {id. at 22:32—23:1).3 See In re Am. Acad. ofSci.
Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004) (“During examination,
‘claims ... are to be given their broadest reasonable interpretation consistent
with the specification, and . . . claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.’”
(quoting In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990))).
For the reasons stated above and given by the Examiner, Appellants
do not show error in the § 103 rejections of independent claim 43.
Accordingly, we sustain these rejections as well as the corresponding
rejections of the dependent claims and emphasize that these cumulative
rejections encompass all of the claims on appeal.
3 Significantly, Appellants fail to identify any disclosure which explicitly
teaches that the vapor “removed by pumping” or “being pumped away” is
not recirculated.
5
Appeal 2016-007150
Application 11/629,943
The $ 112, 1 st paragraph/written description, Rejection
The Examiner rejects all appealed claims under 35 U.S.C. § 112, 1st
paragraph, as failing to comply with the written description requirement.
According to the Examiner, “Applicants’] specification does not provide
support for the amendment of [claim 43 to recite] ‘dumping’” (Final Action
3).
Appellants cite their disclosures in Figure 6 and at Specification 25:2—
16 and 22:30—23:9 in support of their argument that “the [claim 43]
recitation ‘dumping from the process chamber’ refers to the
removal/pumping away of the etching material vapor from the process
chamber” (App. Br. 5).
In response, the Examiner points out that “[a] 11 portions of [the]
specification relied upon by Appellants] disclose[] pumping of the gas [i.e.,
etching material vapor] from the process chamber” (Ans. 3) and argues that
“Appellants] ha[ve] not adequately shown support for the limitation of ‘ . . .
dumping from the process chamber’” {id. at 4).
As indicated previously in discussing the § 103 rejections, it is
reasonable and consistent with Appellants’ original disclosure for an artisan
to interpret the claim 43 language “dumping [etching material vapor] from
the process chamber” to mean Dumping etching material vapor from the
process chamber (i.e., without regard to whether vapor is or is not
recirculated). As so interpreted, the claim language complies with the
written description requirement because, as the Examiner points out above,
the disclosures in the Specification cited by Appellants explicitly teach
pumping the etching material vapor from the process chamber.
6
Appeal 2016-007150
Application 11/629,943
For this reason, we do not sustain the Examiner’s § 112, 1st
paragraph/written description, rejection of claims 43 48 and 50-64.
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. § 1.136(a)(l)(iv).
AFFIRMED
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