Ex Parte Tanaka

Patent Trial and Appeal Board

Oct 31, 2016

13124948 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/124,948 04/19/2011 Rika Tanaka
22429 7590 11/02/2016
HAUPTMAN HAM, LLP
2318 Mill Road
Suite 1400
ALEXANDRIA, VA 22314
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
5120-013 1065
EXAMINER
REMA VEGE, CHRISTOPHER
ART UNIT PAPER NUMBER
1713
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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
following e-mail address( es):
docketing@ipfirm.com
pair_lhhb@firsttofile.com
EAnastasio@IPFirm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
ExparteRIKA TANAKA
Appeal2015-004855
Application 13/124,948
Technology Center 1700
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1-3, 6, and 12 of Application
13/124,948 under 35 U.S.C. § 103(a) as obvious. Final Act. 5-8 (April 8,
2014). Appellant1 seeks reversal of this rejection pursuant to 35 U.S.C.
§ 134(a). We have jurisdiction under 35 U.S.C. § 6(b ).
For the reasons set forth below, we AFFIRM.
1 Nitta Haas Inc. is identified as the real party in interest. Appeal Br. 2.
Appeal2015-004855
Application 13/124,948
BACKGROUND
The '948 Application describes a composition and a method used for
Chemical Mechanical Polishing (CMP) of multi-layer wirings on a
semiconductor. Spec. 1:9-12; 3:6-10. The Specification describes the
claimed invention as providing improved polishing speeds and control over
the selection of such speeds when multiple layers are simultaneously
polished. Id. at 2:16-20; 3:7-9; and 6:5-8.
Claims 1 and 6 are representative of the '948 Application's claims and
are reproduced below from the Claims Appendix to the Appeal Brief:
1. A composition for polishing silicon nitride, comprising:
1) colloidal silica;
2) a polishing aid composed of a phosphoric acid
compound and a sulfuric acid compound; and
3) an oxidizing agent, the content of which is more
than 0 wt% and at most 0.17 wt%, wherein a pH of said
composition for polishing silicon nitride is in a range
from 1.5 to 5.5.
6. A method of controlling a selectivity using the
composition for polishing silicon nitride comprising:
1) colloidal silica;
2) a polishing aid composed of a phosphoric acid
compound and a sulfuric acid compound; and
3) an oxidizing agent, the content of which is more
than 0 wt% and at most 0.17 wt%,
wherein a first selectivity and a second selectivity being
controllable depending on a content of said oxidizing agent and
a pH of said composition for polishing silicon nitride, said first
selectivity representing a ratio of a polishing speed for a metal
layer to a polishing speed for a silicon nitride layer and said
second selectivity representing a ratio of a polishing speed for
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Application 13/124,948
an oxide insulating layer to a polishing speed for a silicon
nitride layer,
wherein said first selectivity is controlled depending on the
content of said oxidizing agent,
said second selectivity is controlled depending on the pH of
said composition for polishing silicon nitride,
said content of said oxidizing agent is set to a first content when
said first selectivity is set to a first value, while said content of
said oxidizing agent is set to a second content that is greater
than said first content when said first selectivity is set to a
second value that is greater than said first value, and
said pH of said composition for polishing silicon nitride is set to
a first pH value when said second selectivity is set to a third
value, while said pH of said composition for polishing silicon
nitride is set to a second pH value that is smaller than said first
pH value when said second selectivity is set to a fourth value
that is greater than said third value.
Appeal Br. 20-22.
REJECTION
On appeal, the Examiner maintains the following rejection:
1. Claims 1-3, 6, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Dysard2 and Lee. 3 Final
Act. 5.
DISCUSSION
Appellant argues for the reversal of the obviousness rejection to
claims 1-3, 6, and 12 on the basis of limitations present in independent
2 US 2007/0298612 Al, published Dec. 27, 2007.
3 US 8,043,970 B2, issued Oct. 25, 2011.
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Application 13/124,948
claims 1and6. See Appeal Br. 8-18; Reply Br. 4. We, therefore, limit our
analysis to claims 1 and 6. Claims 2, 3, and 12 will stand or fall with claim
1. 37 C.F.R. § 41.37(c)(l)(iv).
Rejection 1. The Examiner rejected claims 1-3, 6, and 12 as obvious
over the combination ofDysard and Lee. Final Act. 5.
The Examiner found that Dysard describes or suggests every
limitation of the composition recited in claims 1 and 6 except that:
(i) Dysard is silent as to the limitation concerning a polishing aid composed
of phosphoric acid and sulfuric acid compounds, id., and (ii) Dysard does
not teach the requisite amount of oxidizing agent. Id. at 6.
Regarding (i), the Examiner found that the prior art discloses, inter
alia, that Dysard' s composition includes at least one acidic component
having a pKa in the range of about 1 to about 4.5. Id. at 5 (citing Dysard
i-f 22; claims 1 and 7). The Examiner determined, therefore, that it would
have been obvious for the ordinary skilled artisan "to modify [Dysard's] at
least one acidic component ... to include two acidic components having a
pKa in the range of 1 to about 4.5, such as phosphoric acid and sulfuric acid,
because the composition is not limited to a single acid component, as taught
by Dysard[]." Final Act. 5---6 (citing Dysard i-f 22; claims 1 and 7).
With regard to (ii), the Examiner found that Dysard "defines the
amount of oxidizing agent to be a result effective variable to oxidize one or
more selected metallic material or semiconductor materials[]." Final Act. 6
(citing Dysard i-f 27). The Examiner further found that
Lee discloses slurry compositions for selectively polishing
silicon nitride relative to silicon oxide[], comprising:
polyacrylic acid as a first agent; peroxide compound as a
second [oxidizing] agent; the second agent may suppress
polishing of silicon oxide and increase the polishing selectivity
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Application 13/124,948
of silicon nitride; the amount of the second agent may be in a
range of about 0.1 to about 30 wt.%; slurry composition may
have a pH of about 1 to about 4 ....
Final Act. 6 (citing Lee Abstract; 5:10-7:25; Figs. 14--15).
The Examiner determined that it would have been obvious to the
ordinary skilled artisan "to modify [Dysard's] oxidizing agent[] to be within
the range of [Lee's] oxidizing agent[] in order to optimize the selectivity of
the polishing solution[]." Final Act. 6 (citing Lee 5:10-7:25, Figs. 14--15;
Dysard i-f 2 7).
With respect to claim 6, the Examiner further found Dysard teaches
that "the formulation and pH of the CMP composition can be varied to vary
the silicon nitride removal rate[]." Ans. 6 (citing Dysard i-f 34; see also
i-f 35). Under the Examiner's claim construction, the invention "only
requires that increased oxidation amounts result in an increased polishing
selectivity of metal to silicon nitride (second value greater than first value)."
Ans. 4. Thus, the Examiner determined that "the claim can be met by an
increase in both the metal polishing rate and silicon nitride rate, as long as
the increase in removal rate of the metal is greater than the increase in the
removal rate of silicon nitride and the selectivity ratio thereby increases."
Id. at 4--5.
The Examiner concludes that
one of ordinary skill in the art would expect the selectivity and
polishing rate to be controlled by the amount of the oxidizing
agent ... and would optimize the amount of oxidizing agent to
"a sufficient amount[]," in order to obtain a desired removal
rates or selectivities for metallic and semiconductor materials,
without unexpected results.
Ans. 6 (citing Lee Figs. 14, 15; Dysard i-fi-14, 27, 34, and Example 6).
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Application 13/124,948
Appellant argues that this rejection should be reversed because:
(1) Dysard and Lee "attempt to solve different and opposite problems, which
means that there is no reason for a person of ordinary skill in the art to
employ the teachings of Lee to solve the problem of Dysard," Appeal Br. 11;
(2) the Examiner's applied prior art teaches away from the proposed
combination because Dysard does not identify what result is achieved by
varying the amount of oxidizing agent and Lee exemplifies achieving
selectivity by increasing the amount of oxidizing agent above 1 %, id. at 12-
15; and (3) the Specification provides evidence of unexpected results
demonstrating the ability to independently control the first selectivity and
second selectivity. Id. at 15-18.
First, Appellant's argument (1) is not persuasive because the applied
prior art's teachings do not preclude the ordinary skilled artisan, at the time
of the invention, from noting that the oxidizing agent amount and pH of the
CMP composition can be varied to vary the silicon nitride removal rate
relative to other layers. Thus, the ordinarily-skilled artisan would have
considered the whole of Dysard' s disclosure regarding oxidizing metallic or
semiconductor layers with an oxidizing agent and realized that a peroxide
may suppress silicon oxide polishing while increasing the polishing
selectivity of silicon nitride, according to Lee's teachings. 4 In re Preda, 401
4 Appellant argues that "for the first time [in the Answer], the Examiner
turns to Kurata et al. (US 20050181609 Al)[, published Aug. 18, 2005]" and
"[t]he newly cited Kurata highlights the improperness of the appealed
rejection." Reply Br. 4 (citing Ans. 4). We, however, discern no reversible
error in the Examiner's reliance on Kurata as evidentiary support "that
increased oxidizing amounts results in increased removal rates of metallic
materials." Ans. 4. Kurata was already present in the record evidence. See
Final Act. 4 (April 8, 2014); see also Non-Final Act. 4 (Oct. 24, 2012).
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Application 13/124,948
F .2d 825, 826 (CCP A 1968) ("[I]n considering the disclosure of a reference,
it is proper to take into account not only specific teachings of the reference
but also the inferences which one skilled in the art would reasonably be
expected to draw therefrom.").
Furthermore, the allegedly disparate problems addressed by each of
the references in the Examiner's applied prior art are not dispositive to the
question of obviousness. Cross Med. Prods., Inc. v. Medtronic Sofamor
Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005) ("One of ordinary skill in
the art need not see the identical problem addressed in a prior art reference
to be motivated to apply its teachings."); see also In re Oetiker, 977 F.2d
1443, 1448 (Fed. Cir. 1992) (Nies, C.J., concurring).
Second, we are likewise not persuaded by Appellant's teaching away
argument (2). Because Lee discloses a wt.% range of oxidizing agent that
encompasses the claimed range, the Examiner correctly concluded that the
claimed range was described or suggested by Lee. See, e.g., In re Peterson,
315 F.3d 1325, 1329 (Fed. Cir. 2003) (a prima facie case of obviousness
typically exists when the ranges of a claimed composition overlap the ranges
disclosed in the prior art); In re Harris, 409 F.3d 1339, 1341 (Fed. Cir.
2005); In re Boesch, 617 F.2d 272, 275 (CCPA 1980).
Third, Appellant argues that "[b ]ecause the purpose of the oxidizing
agent in Lee differs from that described in the present specification, and the
fact that Dysard is silent regarding the purpose of the oxidizing agent, the
results described in the present specification were unexpected." Appeal Br.
15.
Unexpected results must be established by clear and convincing
evidence. In re Heyna, 360 F.2d 222, 228 (CCPA 1966) ("It was incumbent
upon appellants to submit clear and convincing evidence to support their
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allegation of unexpected property."); see also McClain v. Ortmayer, 141
U.S. 419, 429 (1891) (conclusive evidence needed to establish new
function). For the reasons stated by the Examiner in the Answer, Appellant
has not met his burden in providing clear and convincing evidence of
unexpected results. See Ans. 9. The parameters tested are not
commensurate in scope with the scope of the instant claims or the prior art
reference. For example, Appellant has not provided evidence of unexpected
results showing the criticality of the endpoints of 0 wt% to 0.17 wt%, of
claim 1 and claim 6. Spec. 17:20-25; Figs. 6-11. Accordingly, Appellant's
assertion of unexpected results is unconvincing. Thus, we affirm
Rejection 1.
CONCLUSION
For the reasons set forth above, we affirm the rejection of claims 1-3,
6, and 12 of the '948 Application.
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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