Ex Parte Stark et al

Board of Patent Appeals and Interferences

Jun 26, 2009

10897286 (B.P.A.I. Jun. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID A. STARK,
LAURENCE D. SCHULTZ, and NEAL T. MURPHY
____________

Appeal 2009-003322
Application 10/897,286
Technology Center 1700
____________

Decided:1 June 26, 2009
____________

Before EDWARD C. KIMLIN, KAREN M. HASTINGS, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-15 and 20.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-003322
Application 10/897,286

Claims 16-19 have been withdrawn from consideration. We have
jurisdiction under 35 U.S.C. § 6(b).
Claim 1 is illustrative:
1. A CMP slurry mixing system comprising:

a first CMP slurry component supply;

a second CMP slurry component supply;

a conditioning component, having first and second inlets and an outlet;

first and second flow control components, operably intercoupled
between the first and second inlets and the first and second CMP slurry
component supplies, respectively; and

an energy source adapted to generate an energy field across the
conditioning component during chemical mechanical polishing.

The Examiner relies upon the following references in the rejection of
the appealed claims (Ans. 2-3):
Sawyer 4,168,295 Sep. 18, 1979
Mase 5,100,476 Mar. 31, 1992
Vanell 5,750,440 May 12, 1998
Klein 6,155,706 Dec. 05, 2000
Taniyama 6,431,184 B1 Aug. 13, 2002
Wu 2004/0134514 A1 Jul. 15, 2004
Boyers 2006/0107976 A1 May 25, 2006
Appellants’ claimed invention is directed to a CMP (chemical-
mechanical polishing) slurry mixing system comprising a first and a second
CMP slurry component supply, a conditioning component, such as a
conveyance component, first and second flow control components, and an
energy source which generates an energy field across the conditioning
component during chemical-mechanical polishing. CMP slurries generally
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comprise a number of components, such as abrasives and reactants (see
Spec. [0006]). Independent claim 20 defines the energy source as a
selectively adjustable megasonic energy source.
The appealed claims stand rejected under 35 U.S.C. § 102(b) as
follows:
(a) Claims 1-4, 6, 7, 9-11, and 13 over Mase,
(b) Claims 1-5, 7-11, 13 and 15 over Taniyama,
(c) Claims 1-6, 9 and 13 over Sawyer, and
(d) Claims 1-4, 7, 8, 13 and 20 over Vanell.
The appealed claims stand rejected under 35 U.S.C. § 103(a) as
follows:
(e) claims 14 and 15 over Mase,
(f) claim 14 over Taniyama,
(g) claims 1-7, 9-11, 13-15 and 20 over Boyers in view of Wu,
(h) claim 12 over Boyers in view of Wu and Klein,
(i) claim 12 over Mase or Taniyama in view of Klein, and
(j) claim 20 over Mase or Taniyama in view of Wu.
We will not sustain the Examiner’s § 102 rejections over Mase,
Taniyama and Sawyer. The flaw in the Examiner’s rejections is that no
weight is given to the claimed first and second CMP slurry component
supplies. The Examiner errs in finding that the claimed supplies are only
statements of intended use that do not define an element of the claimed
system. The Examiner improperly cites Ex parte Masham, 2 USPQ2d 1647
(BPAI 1987) in support of her position. However, in Masham the claim
recited an apparatus that included means for receiving developer material
and means for mixing the developer material. In such cases, the means
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limitation can be met by a prior art means comprising the same structure that
is capable of performing the recited function, whether or not the prior art
teaches processing developer material. On the contrary, the present claims
on appeal do not recite a means for performing a function or an intended use
for the recited structure but, rather, recite a supply or source of first and
second CMP slurry components that are an integral part of the claimed
system. Consequently, since the Examiner makes no finding that the
systems of Mase, Taniyama and Sawyer include first and second CMP slurry
component supplies, the Examiner has not met the burden of demonstrating
that the references describe the claimed system within the meaning of § 102.
We will sustain the Examiner’s §102 rejection of claims 1-4, 7, 8 and
13 over Vanell, but not the rejection of claim 20. Appellants do not dispute
the Examiner’s factual finding that Vanell describes a system comprising
first and second CMP slurry component supplies, a conditioning component,
first and second flow components and an energy source for generating
energy into the conditioning component. It is Appellants’ position that
Vanell does not generate an energy field across the conditioning component
during chemical-mechanical polishing but, rather, “teaches the generation of
a magnetic field ‘into’ element 19 but not across element 19” (Br. 44,
penultimate para.). However, we concur with the Examiner that the
magnetic field of Vanell is generated not only into but also across element
19. Appellants have not defined the term “across” in any way, particularly
such that the recited term would preclude the energy field of Vanell from
being reasonably considered to be across element 19 as well into it. For
instance, claim 1 does not require that the energy field is generated entirely
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across the conditioning component. Appellants have not advanced any
reason why the energy field of Vanell is not into and across element 19.
As for the claim recitations that the first and second CMP components
are introduced concurrently and sequentially, Appellants have not rebutted
the Examiner’s finding that the slurry components of Vanell “are
independently introduced via flow control components pumps 35 and 39,
and can thus be introduced sequentially or concurrently as claimed” (Ans.
17, penultimate para.).
We also find no error in the Examiner’s finding that diffuser 21 of
Vanell meets the manifold assembly of claim 8. Appellants have not
explained why diffuser 21 of Vanell does not qualify as a manifold assembly
that forms part of chamber 19.
Appellants do not offer any additional substantive arguments against
the § 102 rejection over Vanell for the other claims dependent on claim 1,
but only repeat the argument that the reference energy field is generated into
and not across the conditioning component.
We will not sustain the § 102 rejection of claim 20 over Vanell
because the Examiner makes no finding that Vanell describes the recited
selectively adjustable megasonic energy source. The Examiner only makes
the finding that Vanell discloses a mechanical mixer/stirrer which provides
electromagnetic energy (Ans., para. bridging 6-7), and the Examiner offers
no response to Appellants’ argument that Vanell does not teach a selectively
adjustable megasonic energy source. Appellants note that “no specific
reasons are given for the rejection of claim 20” (Br. 50, last para.), and the
portion of the Examiner’s Answer devoted to a response to Appellants’
argument over Vanell does not mention claim 20 (see Ans. 17).
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We will also not sustain the Examiner’s § 103 rejections of claims 14
and 15 over Mase and claim 14 over Taniyama since, as discussed above,
the Examiner makes no finding that the references disclose a system
comprising the claimed first and second CMP slurry component supplies,
nor provides a rationale why it would have been obvious for one of ordinary
skill in the art to incorporate such component supplies in the reference
systems.
Likewise, we will not sustain the § 103 rejections based on Boyers as
a primary reference since the Examiner has not given patentable weight to
the claimed CMP slurry component supplies. As acknowledged by the
Examiner, Boyers teaches an apparatus for washing a substrate. For the
same reason, we will not sustain the Examiner’s § 103 rejection of claims 12
and 20 over Mase as the primary reference.
In conclusion, based on the foregoing, we will sustain only the
Examiner’s § 102 rejection of claims 1-4, 7, 8, and 13 over Vanell. The
Examiner’s various rejections of claims 5, 6, 9-12, 14, and 20 are reversed.
Accordingly, the Examiner’s decision rejecting the appealed claims is
Affirmed-In-Part.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a) (2008).

AFFIRMED-IN-PART

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