Ex Parte Schmitt

Board of Patent Appeals and Interferences

Aug 29, 2012

11123265 (B.P.A.I. Aug. 29, 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.
11/123,265 05/05/2005 Francimar C. Schmitt AMAT/7831/DSM/LOW
K/JW
7934
44257 7590 08/30/2012
PATTERSON & SHERIDAN, LLP - - APPM/TX
3040 POST OAK BOULEVARD, SUITE 1500
HOUSTON, TX 77056
EXAMINER
MALEK, MALIHEH
ART UNIT PAPER NUMBER
2813
MAIL DATE DELIVERY MODE
08/30/2012 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 FRANCIMAR C. SCHMITT
____________________

Appeal 2010-003298
Application 11/123,265
Technology Center 2800
____________________

Before ST. JOHN COURTENAY III, THU A. DANG, and
ANDREW J. DILLON, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appellant filed a Request for Rehearing under 37 C.F.R. § 41.52(a)(1)
for reconsideration of our Decision of August 1, 2012. The Decision
affirmed the Examiner's rejections of claims 1-3 and 8-25, as follows:
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1. We affirmed the Examiner's rejection of claims 1-3, 8-10, and 12-
14 under 35 U.S.C. § 103(a) as being unpatentable over Yang (US
Patent Application Publication No. 2003/0102491 Al, June 5,
2003) and Waldfried (US Patent No. 6,756,085 B2, June 29, 2004).
2. We affirmed the Examiner's rejection of claim 11 under 35 §
U.S.C. 103(a) as being unpatentable over Yang, Waldfried, and
Yim (US Patent Application Publication No. 2003/0139035 Al,
July 24, 2003).
3. We affirmed the Examiner's rejection of claims 15-17, 20, and 22-
25 under 35 U.S.C. § 103(a) as being unpatentable over Yim and
Waldfried.
4. We affirmed the Examiner's rejection of claims 18, 19, and 21
under 35 U.S.C. § 103(a) as being unpatentable over Yim,
Waldfried, and Yau (US Patent No. 6,511,909 Bl, January 28,
2003).

We have reconsidered our Decision in light of Appellant's arguments
in the Request, and we are not persuaded that we misapprehended or
overlooked any points in rendering our Decision. We decline to change our
prior Decision for the reasons discussed infra.

Exemplary Claim 9
Claim 9, reproduced below, is illustrative of the claimed subject
matter:
9. A method for processing a substrate, comprising:
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Application 11/123,265

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introducing a processing gas comprising a nitrogen
containing compound and an organosilicon compound into a
processing chamber;
reacting the processing gas to deposit a first dielectric
layer comprising silicon, carbon, and nitrogen, and the first
dielectric layer has a dielectric constant less than 5;
curing the first dielectric layer with ultra-violet curing
radiation; and
depositing a second dielectric layer comprising silicon,
oxygen, and carbon on the cured first dielectric layer.

ANALYSIS
Issue: Under § 103, did the Examiner err in combining the cited
references relied upon in the rejection of claim 9?
Appellant contends that under § 103 in combining Yang and
Waldfried, the Examiner failed to provide the requisite "articulated
reasoning with some rational underpinnings to support the legal conclusion
of obviousness." (Request 1-2).
More specifically, Appellant argues:
The Board asserts that the Examiner provided "some
articulated reasoning with some rational underpinnings to
support the legal conclusion of obviousness." See p.5.
However, UV curing of a silicon carbide containing nitrogen is
not taught or suggested to increase elastic modulus and material
hardness or maintain "low dielectric properties" by the
references of record. Thus, the Examiner's hypothetical basis
for combining the references is more conclusory and more
unsupported by factual evidence than Applicant's argument,
thus, cannot provide motivation for combing the references
absent any evidence that silicon carbide containing nitrogen and
silicon oxide containing carbon would respond to UV in a
similar manner.
(Request 2) (Emphasis added).
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Based upon our review of the record, we are not persuaded by the
Appellant’s arguments. Firstly, as set forth in our Decision and discussed
below, we find the Examiner's reasoning did provide the requisite
"articulated reasoning with some rational underpinnings to support the legal
conclusion of obviousness." (See Decision 4-5; Ans. 6-7, 16-17). Secondly,
Appellant's Request does not present any evidence to rebut the Examiner's
proffered articulated reasoning. (See Request 2-3).
1.
We reproduce below the portion of Waldfred cited by the Examiner
(Ans. 6-7) to provide motivation for UV curing a dielectric layer and, more
specifically, for UV curing Yang's nitrogen doped silicon carbide dielectric
layer:
The present invention is based on the discovery that UV
curing virtually any dielectric material can be done
substantially quicker than in a furnace cure and can in general,
increase the elastic modulus (Young's modulus) and material
hardness of the material while maintaining its low dielectric
constant properties. The dielectric material can include, but is
not limited to, organic materials, inorganic materials, or
combinations thereof.
(Waldfred Col. 4, ll. 25-32) (Emphasis added).
The Examiner provided a motivation to combine the cited references:
It would have been obvious to one of ordinary skill in the
art at the time the invention was made to modify the Yang's
method of processing a substrate with the Waldfried's method
of curing the dielectric layer by applying UV radiation to
increase the elastic modulus and material hardness while
maintaining its low dielectric constant properties (Waldfried,
col. 4 lines 25-44).
(Ans. 6-7; Op 3-4) (Emphasis added).
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The Examiner found that Waldfreid provides a motivation for "UV
curing virtually any dielectric material," including Yang's nitrogen doped
silicon carbide dielectric layer, to "increase the elastic modulus (Young's
modulus) and material hardness of the material while maintaining its low
dielectric constant properties." (Waldfred col. 4, ll. 25-32) (Ans. 6-7, 15).
Based on the above, we are of the view that the Examiner provided the
requisite "articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness." KSR Int'l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007).
2.
Appellant has not rebutted the Examiner's specific findings regarding
the proffered motivation to combine the references. (See Request 2, App.
Br. 10-11; Reply Br. 2-4). Appellant's contention that "UV curing of a
silicon carbide containing nitrogen is not taught or suggested to increase
elastic modulus and material hardness or maintain 'low dielectric properties'
by the references of record" is merely an unsupported conclusory statement.
(Request 2). Mere attorney arguments and conclusory statements that are
unsupported by factual evidence are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984); 37 C.F.R. § 1.111(b); and Ex parte
Belinne, No. 2009-004693, 2009 WL 2477843 at *3-4 (BPAI Aug. 10,
2009) (informative).
For these reasons, on this record, we are not persuaded that the
Examiner erred.

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CONCLUSION
We have considered the arguments raised by Appellant in the Request
for Rehearing, but Appellant has not convinced us that we misapprehended
or overlooked any points in rendering our Decision.

DECISION
We have granted Appellant's request to the extent that we have
reconsidered our Decision, but we deny the request with respect to making
any changes therein.
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)(2011). See
also 37 C.F.R. § 41.52(b).

DENIED

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