Ex Parte Turner et al

Patent Trial and Appeal Board

Jun 19, 2018

12361668 (P.T.A.B. Jun. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/361,668
48746 7590
HULSEY PC
William N Hulsey III
P.O. BOX 161238
Austin, TX 78716
01/29/2009
06/21/2018
FIRST NAMED INVENTOR
Terry R. Turner
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.
FRTH004USO 8707
EXAMINER
LEE, DOUGLAS
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
06/21/2018 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):
bill.hulsey@hulseyiplaw.com
bill.hulsey@hulseyiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TERRY R. TURNER, JEROME CANNON,
and ENLIAN LU
Appeal2016-002320
Application 12/361,668 1
Technology Center 1700
Before JOHN P. PINKERTON, BRIAND. RANGE, and
DEBRA L. DENNETT, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 11-19. We have jurisdiction. 35 U.S.C. § 6(b ).
An oral hearing was held June 14, 2018. 2
We AFFIRM.
1 According to Appellants, the real party in interest is FORTH-RITE
TECHNOLOGIES, INC. Appeal Br. 3.
2 A written transcript of the oral hearing will be entered into the record when
the transcript is made available.
Appeal 2016-002320
Application 12/361,668
STATEMENT OF THE CASE3
Appellants describe the invention as relating to methods of monitoring
and controlling processes for fabricating electronic devices and, more
particularly, relating to controlling an etching process or chamber cleaning
process. Spec. ,r 1. Claim 11, reproduced below with emphases added to
certain key recitations, is the only independent claim on appeal and is
representative of the claimed subject matter:
11. A method for determining an endpoint of a chamber
cleaning process for cleaning a process chamber of a
semiconductor fabrication equipment according to impedance
values of a chamber cleaning effluent, the method comprising the
steps of:
coupling a remote plasma source to the process chamber,
said remote plasma source located external to and in vacuum
communication with the process chamber;
supplying a chamber cleaning gas from said remote
plasma source to the process chamber, said chamber cleaning
gas comprising a fluorinated gas compound for producing
dissociated fluorine using said remote plasma source;
forming the chamber cleaning effluent comprising
unconsumed chamber cleaning gas and a gaseous compound
formed by consumption of said chamber cleaning gas, said
gaseous compound comprising said dissociated fluorine and
volatilized deposited film from within the process chamber;
exhausting said chamber cleaning effluent from said
process chamber using an effluent line associated with the
process chamber, said effluent line providing a principal effluent
flow path for exhausting the full volume of said chamber
cleaning effluent from the process chamber;
3 In this Decision, we refer to the Final Office Action dated October 23,
2014 ("Final Act."), the Appeal Brief filed June 8, 2015 ("Appeal Br."), the
Examiner's Answer dated October 16, 2015 ("Ans."), and the Reply Brief
filed December 16, 2015 ("Reply Br.").
2
Appeal 2016-002320
Application 12/361,668
providing an electrode assembly within said effluent line,
said electrode assembly operating without the use of a bypass
line;
exposing said electrode assembly to said chamber cleaning
effluent as the chamber cleaning effluent flows through said
effluent line;
applying an ionizing energy to said electrode assembly for
producing a plasma discharge within said chamber cleaning
effluent as said chamber cleaning effluent flows within said
effluent line;
self-cleaning said electrode assembly by dissociating
fluorine from a portion of said fluorine gas compound from said
unconsumed chamber cleaning gas present in a proximity of said
electrode assembly;
determining an initial impedance value, a transition
impedance value, and a stabilized impedance value of said
plasma discharge, said initial impedance value corresponding to
the initiation of the chamber cleaning process wherein minimal
or no change has occurred in a plasma voltage, current, and phase
in the process chamber, said transition impedance value
corresponding to the changing plasma voltage, current, and phase
during the chamber cleaning process, and said stabilized
impedance value corresponding to a stabilized voltage, current,
and phase at the end of the chamber cleaning process;
measuring continually the transition impedance of said
plasma discharge during the chamber cleaning process; and
determining an endpoint value corresponding to said
stabilized impedance value, wherein said endpoint value
associates with a tapering of said transition impedance value
to said stabilized impedance value.
Appeal Br. 18-20 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Mase et al. us 5,016,663
3
May 21, 1991
Appeal 2016-002320
Application 12/361,668
(hereinafter "Mase")
Ng et al.
(hereinafter "Ng")
Ben-Dov et al.
(hereinafter "Ben-Dov")
US 2003/0027428 Al Feb. 6, 2003
US 6,745,095 Bl June 1, 2004
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claim 11 as failing to meet the written description
requirement of 35 U.S.C. § 112, first paragraph. Ans. 2.
Rejection 2. Claims 11-19 under 35 U.S.C. § 103 as unpatentable
over Ng in view of Mase. Id. at 4.
Rejection 3. Claims 11-19 under 35 U.S.C. § 103 as unpatentable
over Ben-Dov in view of Ng and Mase. Id. at 9.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t
has long been the Board's practice to require an applicant to identify the
alleged error in the examiner's rejections."). After considering the evidence
presented in this Appeal and each of Appellants' arguments, we are not
persuaded that Appellants identify reversible error, except where otherwise
explained below. Thus, we affirm the Examiner's rejections (except where
explained below) for the reasons expressed in the Final Office Action and
the Answer. We add the following primarily for emphasis.
Rejection 1, Section 112. The Examiner rejects claim 11 as failing to
meet the written description requirement of 35 U.S.C. § 112, first paragraph.
4
Appeal 2016-002320
Application 12/361,668
Ans. 2. In particular, the Examiner finds that the Specification does not
support claim 11 's recitation of (A) "chamber cleaning gas comprising a
fluorinated gas compound," (B) "forming a chamber cleaning effluent
comprising unconsumed chamber cleaning gas and a gaseous compound
formed by consumption of said chamber cleaning gas and comprising said
dissociated fluorine and volatilized deposited film from within the process
chamber," (C) "self-cleaning said electrode assembly by dissociating
fluorine from said fluorine gas compound of said unconsumed chamber
cleaning gas in the proximity of said electrode assembly," and (D)
"determining an endpoint value corresponding to said stabilized impedance
value, wherein said endpoint value associates with a tapering of said
transition impedance value to said stabilized impedance value." Id. at 2--4.
Pursuant to the written description requirement of 35 U.S.C. § 112,
the disclosure of the application relied upon must "reasonably convey[] to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date." Ariad Pharms., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane). The written description
inquiry is a question of fact. Id.
With respect to recitation (A) identified above, Appellants argue that
paragraph 31 of the Specification discloses a "clean gas such as NF3."
Appeal Br. 10. The Examiner does not dispute that NF3 (nitrogen
trifluoride) is a fluorinated gas compound as recited in claim 11. Ans. 15.
The Examiner, however, finds that there are numerous fluorinated gas
compounds other than NF 3 and that the Specification does not provide
support as to whether any other fluorinated gas can be used as a cleaning
gas. Id. The Examiner thus maintains that Appellants lack written
5
Appeal 2016-002320
Application 12/361,668
description support sufficient to claim "the entire genus of fluorinated gas
compounds." Id.
Appellants' argument does not identify error in the Examiner's
analysis. The Examiner correctly finds that the Specification only expressly
references NF 3 as a possible fluorinated gas for use as a chamber cleaning
gas. Spec. ,r 29. It is true that written disclosure of one species within a
genus could satisfy the § 112 written description requirement where the
disclosure "indicate[ s] that the patentee has invented species sufficient to
constitute the gen[us]." Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956,
967 (Fed. Cir. 2002) (holding that district court did not adequately address
whether three deposit sequences were representative of scope of genus
claim); see also e.g., AbbVie Deutsch/and GmbH & Co., KG v. Janssen
Biotech, Inc., 759 F.3d 1285, 1300 (Fed. Cir. 2014) (holding that claims
directed to functionally defined genus of antibodies were not supported by
disclosure that "only describe[ d] one type of structurally similar anti-bodies"
that "are not representative of the full variety or scope of the genus.");
LizardTech, Inc. v. Earth Resource Mapping, Inc., 424 F.3d 1336, 1345 (Fed.
Cir. 2005) (holding that specification explaining only one way of creating a
seamless array of DWT coefficients did not provide adequate written
description for claim directed to any way of creating seamless DWT).
In the present case, however, Appellants' written description only
indicates invention of one species of cleaning gas (NF 3) within the claimed
genus of "a fluorinated gas compound." Appellants argue that disclosure of
NF 3 would "lead one having ordinary skill in the art of electronic device
fabrication reactors to that sub-class of compounds [i.e., fluorinated gas
compounds]," but Appellants present no evidence that the Specification's
6
Appeal 2016-002320
Application 12/361,668
limited disclosure here would cause a person skilled in the art to believe that
he had possession of the use of "fluorinated gas compounds" as a cleaning
gas as of the filing date. Appeal Br. 10. Appellants thus lack evidence
sufficient to establish invention of a process utilizing the broader genus.
Appellants cite In re Herschler, 591 F.2d 693, 701 (CCPA 1979) to
support their position (Reply Br. 9-10), but that decision is distinguishable.
There, the issue was whether the claim recitation of a "physiologically active
steroidal agent" was adequately supported by a specification that ensured the
inventor had possession, as of the filing date of the application, of the
claimed subject matter. In re Herschler, 591 F.2d at 700. The In re
Herschler specification described a genus to which the recited subgenus
belonged, including the desired function of the genus, and provided
examples "awesome in their diversity," including an example directed to a
particular physiologically active steroidal agent. Id. at 700-702. Under
these circumstances, the Court of Customs and Patent Appeals found that the
written description requirement was met. Id. at 702. Here, in contrast,
Appellants fail to direct us to anything in the Specification that describes the
functional requirements for a cleaning gas appropriate for Appellants'
invention. As such, Appellants' argument does not identify error in the
Examiner's determination that, in this circumstance, the disclosure of one
species within the claimed genus is insufficient to meet the written
description requirement.
With respect to recitations (B) through (D) identified above,
Appellants present no explicit argument against the Examiner's position in
the Appeal Brief. See Ans. 18 (stating that Appellants failed to address these
written description rejections). The Examiner, however, adds substantial
7
Appeal 2016-002320
Application 12/361,668
analysis to these rejections in the Answer. Id. at 18-21. We therefore
consider Appellants' Reply Brief arguments as to these recitations because
such arguments are responsive to arguments raised in the Answer. 37 C.F.R
§ 41.41. 4
Appellants argue that Figures IA, IB, and paragraph 31 of the
Specification disclose recitations (B) through (D). Reply Br. 11-12.
Because paragraph 31 is a very short paragraph, it appears Appellants may
have intended to refer to paragraphs 31-33. Appellants also make reference
to the argument made in the July 8, 2014, Response to Office Action
("Response"). Id. at 11, n. 8.
With respect to recitation (B), we do not sustain the Examiner's
rejection because the Specification at paragraphs 32-33 teaches
consumption of the cleaning gas and therefore adequately discloses this
recitation.
With respect to recitation (C), Appellants maintain that Figures IA
and IB show partial pressures of NF 3. Response 15. It is not clear how this
argument relates to whether or not dissociation of the fluorine gas occurs "in
[the] proximity of said electrode assembly" as recited. Appellants' argument
in the Reply Brief likewise does not adequately explain how Appellants'
possession of this recitation is established by the Specification. Reply Br.
4 Appellants presented extensive argument concerning written description
support for recitations (B) through (D) at oral argument. To extent the oral
argument extends beyond evidence and arguments previously presented in
Appellants' briefing, we do not consider it. 3 7 C.F .R. § 41.4 7 ( e )( 1) ("At the
oral hearing, appellant may only rely on Evidence that has been previously
entered and considered by the primary examiner and present argument that
has been relied upon in the brief or [the] reply brief .... ").
8
Appeal 2016-002320
Application 12/361,668
11-12. Because Appellants do not persuasively identify error, we sustain
the Examiner's rejection as to this recitation.
With respect to recitation (D), Appellants maintain that paragraph 34
and Figure 3 of the written description provide support. Response 11.
Appellants' position is persuasive because Appellants' Figure 3 illustrates
tapering of a transition impedance value to a stabilized impedance value.
We therefore do not sustain this rejection.
Rejection 2 and 3, obviousness. The Examiner rejects claims 11-19
under 35 U.S.C. § 103 as unpatentable over Ng in view of Mase and also
rejects the same claims under 35 U.S.C. § 103 as unpatentable over Ben-Dov
in view of Ng and Mase. Ans. 4, 9. Appellant does not present
substantively distinct arguments for these two rejections. See Appeal Br. 14.
Appellants also argue all claims as a group. Id. at 12. Therefore, consistent
with the provisions of 37 C.F.R. § 4I.37(c)(l)(iv) (2013), we limit our
discussion to claim 11 and focus on the Examiner's second rejection. All
other claims on appeal stand or fall together with claim 11.
The Examiner finds that Ng teaches most of the recitations of claim
11. Ans. 4---6 (providing citations to Ng). The Examiner finds that Mase
discloses a method for determining the end of a cleaning of a semiconductor
manufacturing apparatus where the impedance between discharge electrodes
is monitored while a constant current or voltage is supplied from a high-
frequency power source. Id. at 6. The Examiner finds that Figure 2 of Mase
teaches an initial, transition, and stabilized impedance value. Id. The
Examiner determines that it would have been obvious to one of skill in the
art to modify Ng to include the impedance sensor of Mase to make use of
Mase' s sensor determining the end of cleaning with high precision and thus
9
Appeal 2016-002320
Application 12/361,668
improving operation efficiency of the semiconductor manufacturing
apparatus. Id. at 6-7.
Appellants argue that Mase does not teach or suggest determining a
"stabilized impedance value" as recited by Claim 11. Appeal Br. 12; Reply
Br. 12. At oral argument, Appellants emphasized that impedance is a
function of voltage, current, and phase angle (see also Spec. ,r 28 (referring
to the components of impedance as "voltage (V), current (I) and phase angle
")), and Appellants attempt to distinguish Mase as only illustrating a
stabilized voltage. Appeal Br. 13. Appellants also argue that Mase is only
detecting an abrupt change rather than a stabilized impedance. Id. at 13-14
( citing Mase ,r 40).
The preponderance of the evidence does not support Appellants'
argument. The Examiner finds that Mase determines impedance values.
Ans. 6-7, 21-22. This finding is well supported by Mase. See, e.g., Mase
2: 11-24 ("According to the present invention, a method of determining an
end of cleaning [where] an impedance between discharge electrodes ... is
monitored .... "); 2:26-32 ("It has been confirmed that an abrupt change
point of an impedance ... is an end of cleaning."). While Mase's Figure 2
refers to voltage rather than impedance (just like Appellants' Figure 3),
Mase also explains, "[ s ]ince the injected current is constant, the impedance
between the electrodes changes in the same manner as the voltage between
the electrodes." Id. at 4:9-11.
As for Appellants' argument that Mase teaches detecting an abrupt
change rather than a stabilized impedance, the preponderance of the
evidence establishes that Mase' s statements concerning an "abrupt change"
refer to determining when measured impedance/ voltage abruptly changes
10
Appeal 2016-002320
Application 12/361,668
to a stabilized state. In particular, Mase explains its Figure 2 by stating that
"the second abrupt change point of the impedance P can be determined to be
an endpoint of cleaning." Mase 4: 11-15. Mase's Figure 2 is reproduced
below.
VOLTAGE V
<'
---~-)
.............._ CLEANING TIME r
FIG. 2
Figure 2 of Mase is a graph showing a relationship between cleaning time,
voltage between electrodes, and an injected electrode current in Mase's
apparatus. Mase 2:48-50. As can be seen in Figure 2, point P shows an
abrupt change in the slope of the voltage graph. Ans. 21-22. Between
points Q and P, the voltage is rapidly dropping. Between points P and R, the
voltage is relatively stable. Id. Mase teaches that point P where the leveling
of the voltage slope starts is the endpoint of cleaning. Mase' s teaching in
this regard is substantially the same as illustrated by Appellants' Figure 3
(not reproduced here).
Appellants also argue that Mase teaches only single phase etching
rather than multi-layer etching. Appeal Br. 13-14. Appellants fail to
11
Appeal 2016-002320
Application 12/361,668
explain, however, how the recitations of claim 11 are limited to multi-layer
etching. Ans. 22.
During oral argument, Appellants further argued, for example, that the
apparatus of Mase could not be incorporated into the apparatus of Ng. We
do not consider arguments raised for the first time at oral argument.
3 7 C.F .R. § 41.4 7 ( e )(1 ). Because the arguments presented in Appellants'
briefing do not identify reversible error, we sustain this rejection.
DECISION
For the above reasons, we affirm the Examiner's rejections of (1)
claim 11 as failing to meet the written description requirement of 35 U.S.C.
§ 112 based on inadequate support for (A) "chamber cleaning gas
comprising a fluorinated gas compound" and ( C) "self-cleaning said
electrode assembly by dissociating fluorine from said fluorine gas compound
of said unconsumed chamber cleaning gas in the proximity of said electrode
assembly," (2) claims 11-19 under 35 U.S.C. § 103 as unpatentable over Ng
in view of Mase, and (3) claims 11-19 under 35 U.S.C. § 103 as
unpatentable over Ben-Dov in view of Ng and Mase. We reverse the
Examiner's rejection of claim 11 as failing to meet the written description
requirement of 35 U.S.C. § 112 based on inadequate support for (B)
"forming a chamber cleaning effluent comprising unconsumed chamber
cleaning gas and a gaseous compound formed by consumption of said
chamber cleaning gas and comprising said dissociated fluorine and
volatilized deposited film from within the process chamber" and (D)
"determining an endpoint value corresponding to said stabilized impedance
value, wherein said endpoint value associates with a tapering of said
transition impedance value to said stabilized impedance value."
12
Appeal 2016-002320
Application 12/361,668
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
13