Ex Parte Schmitt

Board of Patent Appeals and Interferences

Jul 31, 2012

11123265 (B.P.A.I. Jul. 31, 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 08/01/2012
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
08/01/2012 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 APPEAL

Appeal 2010-003298
Application 11/123,265

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from rejections of claims 1-3
and 8-25. Claims 4-7 have been cancelled. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
Invention
The claims are directed to a process for forming dielectric layers on a
substrate, and to the structures formed by the dielectric layer. Specification,
pg. 2. Claim 9, reproduced below, is illustrative of the claimed subject
matter:
9. A method for processing a substrate, comprising:
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.

REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Yau US 6,511,909 B1 Jan. 28, 2003
Yang US 2003/0102491 A1 Jun. 5, 2003
Yim US 2003/0139035 A1 Jul. 24, 2003
Waldfried US 6,756,085 B2 Jun. 29, 2004

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REJECTIONS
Claims 1-3, 8-10, and 12-14 stand rejected under 35 U.S.C. 103(a) as
being unpatentable over Yang and Waldfried.
Claim 11 stands rejected under 35 U.S.C. 103(a) as being
unpatentable over Yang, Waldfried, and Yim.
Claims 15-17, 20, and 22-25 stand rejected under 35 U.S.C. 103(a) as
being unpatentable over Yim and Waldfried.
Claims 18, 19, and 21 stand rejected under 35 U.S.C. 103(a) as being
unpatentable over Yim, Waldfried, and Yau.

GROUPING OF CLAIMS
Based on the Appellant’s arguments, we decide the appeal on the
basis of claims 9 and 15. See 37 C.F.R. § 41.37(c)(1)(vii).

ANALYSIS
Based upon our review of the record, we are unpersuaded by the
Appellant’s arguments regarding the Examiner’s rejections of claims 1-3 and
8-25. We adopt as our own: (1) the findings and conclusions set forth by the
Examiner in the Office action from which this appeal is taken and (2) the
claim constructions, findings, and conclusions set forth by the Examiner in
the Examiner’s Answer in response to the Appellant’s Appeal Brief. We
highlight and address the following arguments only for emphasis:
Obviousness rejection of claim 9
Issue: Under § 103, did the Examiner err in combining the cited
references relied upon in the rejection of claim 9?
The Examiner provides a motivation to combine the cited references:
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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 27-29).
(Ans. 6-7).
Appellant disagrees:
[T]here is no suggestion or motivation to modify the in-situ
deposited oxygen and nitrogen containing silicon carbide based
barrier bilayer of an oxygen-dope silicon carbide upper layer
and a nitrogen-doped silicon carbide lower layer to prevent
respective nitrogen and oxygen diffusion of Yang et al., with
the silicon oxide and carbon doped silicon oxide material
deposition and UV cure to increase the Young's Modulus and
material hardness of the material while maintaining the
dielectric constant properties to replace the furnace curing of
such materials of Waldfried et al.
(Reply Br. 3)
Appellant’s arguments are unpersuasive. Appellant contends that the
combination of Yang and Waldfried is improper because there is no
motivation for the combination. (Id.). However, the Examiner provides a
motivation for the combination (Ans. 6-7, and 16-18). 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,
slip op. at 7-8 (BPAI Aug. 10, 2009) (informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf

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Here, Appellant has not rebutted the Examiner's specific finding
regarding the proffered motivation to combine the references. (See App.
Br. 10-11; Reply Br. 2-4). We are of the view that the Examiner has
provided "some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness." See KSR Int'l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007)
Appellant also attacks the references individually. (App. Br. 10-11).
Appellant’s arguments do not take into account what the collective teachings
of the prior art would have suggested to one of ordinary skill in the art and
are therefore ineffective to rebut the Examiner’s prima facie case of
obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981)("The test
for obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; nor is it that
the claimed invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art." (Emphasis
added) (citations omitted)).
For these reasons, on this record, we are not persuaded that the
Examiner erred. Therefore, we sustain the Examiner's obviousness rejection
of (1) representative claim 9, and associated dependent claims 10, and 12-14
which fall therewith, and (2) independent claim 1 (argued the same reasons
as for claim 9) and associated dependent claims 2, 3, and 8 which fall
therewith. See 37 C.F.R. § 41.37(c)(1)(vii).

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Obviousness rejection of claim 11
Appellant urges that dependent claim 11 is allowable for essentially
the same reasons previously advanced for independent claim 9. (App. Br.
12-14). However, we found Appellant’s arguments for claim 9 unpersuasive
for the reasons discussed above. Therefore, we sustain the Examiner's
obviousness rejection of claim 11 for the same reasons discussed above
regarding claim 9.
Obviousness rejection of claim 15
Issue: Under § 103, did the Examiner err in combining the cited
references relied upon in the rejection of claim 15?
The Examiner makes the following findings:
It would have been obvious to one of ordinary skill in the art at
the time the invention was made to modify the Yim's method of
processing a substrate with the Waldfried et al. 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). In addition, regarding claim 15, selection of any order of
performing process steps is prima facie obvious in the absence
of new or unexpected results; In re Burhans, 154 F.2d 690,69
USPQ 330 (CCPA 1964); In re Gibson, 39 F2d 975, 5 USPQ
230 (CCPA 1930), MPEP 2144.04.
(Ans. 9-10).
Appellant presents the following contentions:
Further, there is no suggestion or motivation to modify the
silicon carbide glue layer free or substantially free of nitrogen, a
bilayer of an oxygen-containing silicon carbide barrier layer on
the SiN or SiCN layer, or a silicon carbide or nitrogen-doped
silicon carbide hard mask of Yim et al. with the silicon oxide
and carbon doped silicon oxide material deposition and UV
cure to increase the Young's Modulus and material hardness of
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the material while maintaining the dielectric constant properties
to replace the furnace curing of such materials of Waldfried et
al.
(App. Br. 15).
Appellant’s arguments are unpersuasive. Similar to our discussion
above, Appellant has not traversed the Examiner’s specific findings (Ans. 9-
10) regarding the motivation to combine the references. Although Appellant
presents additional arguments in the Reply Brief (8) regarding the
admissibility of US Patent 5,000,113, "[t]he failure to raise all issues and
arguments diligently, in a timely fashion, has consequences." Ex parte
Borden , 93 USPQ2d 1473, 1475 (BPAI 2010) (informative decision). See
Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir 2008) (Arguments not made
are considered waived).
For these reasons, on this record, we are not persuaded that the
Examiner erred. Therefore, we sustain the Examiner's obviousness rejection
of representative claim 15 and associated dependent claims 16, 17, 20, and
22-25 which fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii).

Obviousness rejection of claims 18, 19, and 21
Appellant urges that dependent claims 18, 19, and 21 are allowable
for essentially the same reasons that independent claim 15 is allowable.
(App. Br. 12-14). However, we found Appellant’s arguments for claim 15
unpersuasive for the reasons discussed above.
Also, as discussed above, Appellant additional arguments in the Reply
Brief (8) regarding the admissibility of US Patent 5,000,113, are not timely
and are considered waived. See Ex parte Borden , 93 USPQ2d at 1475.
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For these reasons, on this record, we are not persuaded that the
Examiner erred. Therefore, we sustain the Examiner's obviousness rejection
of claim 18, 19, and 21.

DECISION
We affirm the Examiner’s obviousness rejections of claims 1-3 and
8-25.
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) (2009).

AFFIRMED

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