Ex Parte Todorow et al

Board of Patent Appeals and Interferences

May 10, 2012

10880754 (B.P.A.I. May. 10, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/880,754 06/30/2004 Valentin N. Todorow 7716/ETCH/CONE/JB1 1789
44257 7590 05/10/2012
PATTERSON & SHERIDAN, LLP - - APPM/TX
3040 POST OAK BOULEVARD, SUITE 1500
HOUSTON, TX 77056
EXAMINER
DHINGRA, RAKESH KUMAR
ART UNIT PAPER NUMBER
1716
MAIL DATE DELIVERY MODE
05/10/2012 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 VALENTIN N. TODOROW, JOHN P. HOLLAND,
and MICHAEL D. WILLWERTH
____________

Appeal 2010-006724
Application 10/880,754
Technology Center 1700
____________

Before PETER F. KRATZ, CATHERINE Q. TIMM, and
KAREN M. HASTINGS, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection under 35 U.S.C. § 103(a) of claims 1-3, 5-7, 9, 11-14, 28, 32-35,
37, 39, and 41-49. The claims have been at least twice rejected. We have
jurisdiction under 35 U.S.C. § 6.
We REVERSE.
At the outset, we note that the Examiner maintained two provisional
nonstatutory obviousness-type double patenting rejections in the Action
Appeal 2010-006724
Application 10/880,754

2
from which appeal is taken, i.e., the Non-Final Rejection mailed October 22,
2008. Since the Non-Final Rejection, one of the relied upon Applications,
Application No. 11/530,659, has been abandoned (Notice of Abandonment
mailed July 26, 2011). Therefore, that rejection is moot. The other
Application, Application No. 10/882,084 is still pending. The Examiner,
however, does not reproduce the provisional rejection in the Answer and
Appellants do not contest this rejection (App. Br. 5). Therefore, we do not
reach the merits of the rejection at this time. This is consistent with the
holding of Ex Parte Moncla, 95 USPQ2d 1884, 1885 (BPAI 2010)
(precedential).

Claim 1 reads as follows:
1. An apparatus for plasma processing a substrate,
comprising:
a process chamber having an internal volume defined by a chamber
ceiling and chamber walls;
a substrate support pedestal disposed in the internal volume;
an RF power source for forming a plasma within the internal volume of the
process chamber;
a plasma stabilizer disposed in the internal volume of the process
chamber above the pedestal and spaced apart from the chamber ceiling, the
plasma stabilizer having a diameter greater than a diameter of the pedestal
and separating a first processing region above the plasma stabilizer wherein
the plasma is maintained from a second processing region below the plasma
stabilizer and above the pedestal, the plasma stabilizer adapted to control the
spatial distribution of charged and neutral species of the plasma, wherein the
plasma stabilizer further comprises:
a member electrically isolated from the chamber;
a plurality of apertures formed through the member; and
a plurality of support legs supporting the member above the
pedestal; and
Appeal 2010-006724
Application 10/880,754

3
an edge ring disposed about a perimeter of an upper surface of the
substrate support pedestal and having the plurality of support legs extending
therefrom.

Independent claims 28 and 34 are also directed to apparatus for
plasma processing a substrate and contain similar recitations to claim 1
regarding the diameter of the plasma stabilizer member being greater than
the diameter of the pedestal or the edge ring, and the plurality of support legs
extending from the edge ring.

The Examiner relies upon the base combination of Wu (US
2002/0142614 A1, issued Oct. 3, 2002) in view of Jung (US 2004/0035532
A1, issued Feb. 26, 2004) to reject all of the claims on appeal (See App. Br.
7 for a complete listing of the rejections on appeal). We need only address
claim 1.
The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
"[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) quoted
with approval in KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 417-18
(2007).
The fact finder must be aware “of the distortion caused by hindsight
bias and must be cautious of arguments reliant upon ex post reasoning.”
KSR Int'l Co. v. Teleflex Inc., 550 U.S. at 421(citing Graham v. John Deere
Appeal 2010-006724
Application 10/880,754

4
Co. of Kansas City, 383 U.S. 1, 36 (1966) (warning against a “temptation to
read into the prior art the teachings of the invention in issue”)).
After consideration of the record on appeal, we determine that the
preponderance of the evidence supports the Appellants’ position that the
Examiner has not established a prima facie case of obviousness because the
Examiner is improperly performing a “hindsight redesign of the Wu
apparatus to match the claimed invention” (Reply Br. 3; see also App. Br. 15
(“The Examiner asserts obviousness of the present claims by singling out
multiple individual limitations . . ., each of which is not taught in any
reference, attempting to demonstrate the obviousness of each limitation in
vacuo, and concluding from that analysis the entire claim is obvious”)).
As more thoroughly explained in the Briefs, Wu’s reactor does not
disclose a plasma stabilizer member with an outside diameter greater than
the diameter of the pedestal as required by Claim 1 (e.g., App. Br. 12, 13).
Rather, Wu’s shielding plate 110 is for selectively controlling the etch rate
and the discussion therein focuses on a shield plate having a shield that is
smaller than the reticle and substrate support (id.; Wu, paras. 0021 to 0026,
relied upon by the Examiner, see Ans. 4, 16, 18). A preponderance of the
evidence supports Appellants’ position that there is no apparent reason to
modify Wu based on Jung, especially in light of the different principles of
operation of Wu’s reactor from Jung’s reactor (App. Br. 13). The
preponderance of the evidence also supports Appellants’ position that the
Examiner’s reliance on In re Woodruff “is misplaced” (App. Br. 14).
Furthermore, on this record, the only reason for modifying Wu to contain the
edge ring of Jung and then modifying the edge ring to have support legs of
Wu extending therefrom as proposed by the Examiner appears to derive
Appeal 2010-006724
Application 10/880,754

5
from the impermissible hindsight of Appellants’ own disclosure (App. Br.
11-16; Reply Br. 1, 2).
The Examiner has not relied upon any of the other applied references
to remedy these deficiencies.
The decision of the Examiner is reversed.

REVERSED

sld