Ex Parte Wang et al

Board of Patent Appeals and Interferences

Oct 28, 2009

10781353 (B.P.A.I. Oct. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JENNIFER WANG and MIKE BARSKY

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Appeal 2009-005165
Application 10/781,353
Technology Center 2800
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Decided: October 28, 2009
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Before KENNETH W. HAIRSTON, MARC S. HOFF,
and THOMAS S. HAHN, Administrative Patent Judges.

HAHN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants invoke our review under 35 U.S.C. § 134(a) from the
Examiner’s final rejection of claims 21-27. We have jurisdiction under 35
U.S.C. § 6(b). An oral hearing was held on October 8, 2009.1 We affirm.

1 During the oral hearing, Appellant’s counsel stated that appealed claim 21
is to be cancelled. No 37 C.F.R. § 41.33 authorized amendment to cancel
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STATEMENT OF THE CASE
Appellants claim a device invention for a via, i.e., hole, in a polymer
layer. The via has an aspect ratio greater than 1, and (as recited in some
claims) a sub-micron wide opening, substantially the same opening diameter
through at least one-half the depth, and a tapered sidewall.2 Claims 21 and
22 are illustrative:

21. A device including a via produced by the process comprising the steps
of:

placing a hard-mask on a polymer layer;

placing a photoresist mask on said hard-mask;

releasing a first fluoride gas into a chamber to etch a hard-mask opening for
defining a via hole; and

releasing a second fluoride gas into said chamber to etch an exposed portion
of said polymer layer defining said via hole with at least one vertical
sidewall,

whereby the via hole comprises an aspect ratio which is greater than 1, and
is of substantially the same diameter throughout the depth of the via hole.

22. A device including a via produced by the process comprising the
steps of:

placing in a chamber a semiconductor substrate including a polymer layer
defining a sub-micron wide via-opening deposited on said semiconductor
substrate, and a hard-mask defining said sub-micron wide via-opening
deposited on said polymer layer;

claim 21 has been filed. Therefore, this decision addresses the appealed final
rejection of claim 21.
2 See generally Spec. ¶¶ [0008], [0024]-[0027], and [0029]-[0034]; Figs. 2A-
C, 3, 4A, and 5.
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whereby the via comprises an aspect ratio which is greater than 1, and is of
substantially the same diameter throughout at least one-half the depth of the
via;

releasing a third fluoride gas into said chamber to etch said hard-mask and
an exposed portion of said polymer layer proximal to said sub-micron wide
via-opening thereby creating at least one tapered sidewall within a via.

The Examiner relies on the following prior art references to show
unpatentability:
Yu US 6,004,883 Dec. 21, 1999

Lin US 2002/0068441 A1 June 6, 2002

Lin (‘369) US 6,515,369 B1 Feb. 4, 2003

1. The Examiner rejected claims 21, 22, and 25 under 35 U.S.C. §
102(b) as being anticipated by Lin (‘369).
2. The Examiner rejected claim 21 under 35 U.S.C. § 103(a) as being
unpatentable over Yu and Lin.
3. The Examiner rejected claims 23, 24, 26, and 27 under 35 U.S.C. §
103(a) as being unpatentable over Lin (‘369).

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Rather than repeat the arguments of Appellants or of the Examiner,
we refer to the Briefs and the Answer3 for their respective details. In this
decision, we have considered only those arguments actually made by
Appellants. Arguments that Appellants could have made but did not make
in the Briefs have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).
Appellants’ Arguments
Anticipation
Appellants assert that the Examiner idealized Lin (‘369) figures 5A
and 10 to conform to what he believes is the Lin (‘369) invention, without
written substantiation from Lin (‘369) as to diameter, verticality, or tapering
of via sidewalls (App. Br. 10, 11; Reply Br. 3).
Obviousness
Appellants address the rejection of claim 21 over Yu and Lin with
assertions that the Examiner erred in finding the references teaching or
suggesting verticality of via walls, and a via aspect ratio being greater than
one (App. Br. 11-13).
In addressing the rejection of claims 23, 24, 26, and 27 over Lin
(‘369), Appellants assert that the reference inadequately teaches or suggests
a tapered via sidewall extending at least a specified depth into a via (App.
Br. 13, 14; Reply Br. 5).

3 We refer throughout this opinion to (1) the Appeal Brief filed June 20,
2008, (2) the Examiner’s Answer mailed Oct. 7, 2008, and the Reply Brief
filed Dec. 5, 2008.
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ISSUES
Have Appellants shown that the Examiner erred in rejecting claims
21, 22, and 25 under § 102(b) as being anticipated by Lin (‘369), because
Lin (‘369) fails expressly or inherently to teach a via having “substantially
the same diameter throughout the depth of the via hole” or “at least one-half
the depth” and a tapered sidewall as claimed?
Have Appellants shown that the Examiner erred in rejecting claim 21
under § 103(a) over Yu and Lin, because the applied references neither teach
nor suggest verticality of via walls or a via having an aspect ratio greater
than one as claimed?
Have Appellants shown that the Examiner erred in rejecting claims
23, 24, 26, and 27 under § 103(a) over Lin (‘369), because Lin (‘369) fails to
teach or suggest a tapered via sidewall extending at least a specified depth
into a via?

FINDINGS OF FACT
The record supports the following Findings of Fact (FF) by a
preponderance of the evidence:
Present Application
1. The application Specification discloses that a via aspect ratio is the
“ratio of the square of the via depth to cross-sectional area of the via-
opening,” and that “the preferred range of via depth to via width
values [is] greater than 4 to 1” (¶ [0030]).
Lin (‘369)
2. Lin (‘369) discloses structure for semiconductor electrical
components and methods for manufacturing these semiconductor
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components that include opening patterns into assembled layers (col.
1, ll. 17-23; col. 7, ll. 61-63).
3. A disclosed Lin (‘369) pattern of openings 22, 36, and 38 is etched
through a polyimide layer 20, which is deposited on a semiconductor
component passivation layer 18. As shown in figures 1 and 5a, these
openings 22, 36, and 38 have substantially the same diameters
throughout their depths (col. 7, ll. 54-63; Figs. 1 and 5a).
4. Lin (‘369) further discloses that an “aspect ratio of vias 22/36/38 . . .
of about 5 is acceptable for . . . via etching and . . . filling,” and that
the openings 22/36/38 can have a diameter “in the range of
approximately 0.5 µm to 30 µm . . .” (col. 8, ll. 43-44, col. 9, ll. 24-
25).
5. Shown in Lin (‘369) figure 10 (reproduced below for reference) are
vias with tapered upper half sidewalls and contact plugs 50 formed in
the vias.

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Figure 10 of the present application shows a cross section of
polyimide layer 20 with contact plug 50 filled vias
Yu
6. Yu discloses a method for forming vias through microelectronics
component dielectric layers (Abstract).
7. A series of Yu apertures 25a, 25b, and 25c are disclosed as being
trenches formed through a dielectric layer 16, and are shown as
having parallel vertical walls (col. 10, ll. 40-67; Fig. 3).
Lin
8. Lin discloses a method for manufacturing integrated circuits,
including etching parallel vertical walled vias 7 through a polyimide
layer 5 (¶¶ [0003], [0042]; Fig. 1).
9. The disclosed diameter for the Lin opening 7 ranges from 0.5 µm to
3.0 µm, and Lin further discloses that the “aspect ratio of opening 7 is
designed such that filling of the via with metal can be accomplished (¶
[0050]). Further, disclosed is that a via 7 “aspect ratio of about 5 is
acceptable for . . . via etching and . . . filling” (¶ [0044]).

PRINCIPLES OF LAW
Product-by-Process Claims
“The patentability of a [product-by-process claimed] product does not
depend on its method of production. If the product . . . is the same as or
obvious from a product of the prior art, the claim is unpatentable even
though the prior product was made by a different process.” In re Thorpe,
777 F.2d 695, 697 (Fed. Cir. 1985) (citations omitted). See also In re
Marosi, 710 F.2d 799, 803 (Fed. Cir. 1983) (“Where a product-by-process
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claim is rejected over a prior art product that appears to be identical,
although produced by a different process, the burden is upon the applicants
to come forward with evidence establishing an unobvious difference
between the claimed product and the prior art product.” (citations omitted)).
Anticipation
The inquiry as to whether a reference anticipates a claim must focus
on what subject matter is encompassed by the claim and what subject matter
is described by the reference. As set forth by the court in Kalman v.
Kimberly-Clark Corp., 713 F.2d 760, 772 (Fed. Cir. 1983), it is only
necessary for the claims to "'read on' something disclosed in the reference,
i.e., all limitations of the claim are found in the reference, or 'fully met' by
it."
Obviousness
An Examiner, in rejecting claims under 35 U.S.C. § 103, must
establish a factual basis to support a legal conclusion of obviousness. See In
re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). The Supreme Court has
further explained that an obviousness rejection must be based on:
“‘some articulated reasoning with some rational underpinning
to support the legal conclusion of obviousness’. . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.”

KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006).
There is a presumption of obviousness for an invention claimed in a
range disclosed in the prior art. “[T]he presumption will be rebutted if it can
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be shown: (1) That the prior art taught away from the claimed invention . . . ;
or (2) that there are new and unexpected results relative to the prior art . . . .”
Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed.
Cir. 2004).

ANALYSIS
Anticipation by Lin (‘369)
We do not find error in the Examiner’s anticipation rejection of claims
21, 22, and 25 based on Lin (‘369).
Claim 21
Appellants assert that the recited “novel process results in a device
that has never before been accomplished on a sub-micron or micron level,”
and that the Examiner “erroneously” relies on Lin (‘369) figure 5a, which
according to Appellants is a “crude drawing . . . that represents an entirely
different concept and invention” (App. Br. 10).
The Examiner and we conclude that the patentability of claim 21
depends on what is claimed for the product, i.e., device, and not the recited
method of production for the device (Ans. 10, 11). See In re Thorpe, 777
F.2d at 698.4 Therefore, our review is exclusively directed to the device’s
recited structure limitations, which the Examiner indicates to be as follows:

4 Appellants, in arguing patentability of other appealed claims, repeat their
reliance on process limitations. Since all appealed claims are drafted in
product-by-process format, the Examiner correctly has explained that
patentability for such claims does not turn on any recited production method
limitation. Accordingly, we do not further address Appellants’ production
process premised assertions.
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As a device, the physical aspect of the claim includes: a via hole being
formed in a polymer layer having an aspect ratio (defined as
depth/width ratio) of which is greater than 1 and is of substantially the
same diameter throughout the depth of the via hole. Other than “via
hole comprises an aspect ratio which is greater than 1”, the actual size
of the via hole, being submicron, etc., has never been recited in the
claim.

(Ans. 11).
The Examiner then indicates that Lin (‘369) figure 5a “teaches
such a device” (id.). Again we concur with the Examiner, because we
also find Lin (‘369) figure 5a teaching a pattern of openings 22, 36,
and 38 etched through a polyimide layer 20, with openings having
substantially the same shown diameter throughout their lengths (FF
3). Though not explicitly cited by the Examiner, we further find that
Lin (‘369) discloses that “an aspect ratio of vias 22/36/38 . . . of about
5 is acceptable for . . . via etching and . . . filling” (FF 4).
Accordingly, from this record we find that the claim 21 covered
device reads on the Lin (‘369) figure 5a taught device vias, and we,
therefore, are not persuaded by Appellants’ arguments.
For these reasons, we find, as does the Examiner, that the claim 21
recited device is anticipated by Lin (‘369). We will sustain the Examiner’s
rejection under § 102(b) of claim 21.
Claim 22
The Examiner and we find Lin (‘369) teaching a device via having a
sub-micron diameter, and also having an aspect ratio greater than one (Ans.
4; FF 4).
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Appellants focus their arguments “on the question of whether Figure
10 in Lin ‘369 teaches both the claimed via geometry and how to create such
a via” (Reply Br. 2). What Appellants assert is that Lin (‘369), aside from
figure 10, which is relied on by the Examiner, lacks disclosure “that there is
tapering of the [via] sidewall, much less how to achieve it” (App. Br. 10).
The Examiner responds with findings that concur with ours; namely,
that “as shown in figure 10, Lin teaches a via . . . having tapered (top
portion) and vertical sidewall (lower portion)” (Ans. 12; FF 5). Continuing,
the Examiner indicates that “[d]rawings and pictures can anticipate [a] claim
if the[y] clearly show the structure which is claimed. See In re Mraz, 455
F.2d 1069, 173 USPQ 25 (CCPA 1972)” (Ans. 12). We also note that the
Federal Circuit has further declared that “a drawing in a utility patent can be
cited against the claims of a utility patent application even though the feature
shown in the drawing was unintended or unexplained in the specification of
the reference patent” In re Aslanian, 590 F.2d 911, 914 (CCPA 1979)
(citations omitted) (emphasis added). Accordingly, based on the record, we
conclude that the claim 22 covered device reads on the Lin (‘369) figure 10
vias, and we, therefore, are not persuaded by Appellants’ arguments.
We conclude, as does the Examiner, that the claim 22 recited device is
anticipated by Lin (‘369). We will sustain the Examiner’s rejection under §
102(b) of claim 22.
Claim 25
Appellants’ arguments with respect to claim 25 (App. Br. 11; Reply
Br. 2-5) are merely reiterations of those we considered with respect to claim
22 above. Accordingly, we will sustain the Examiner’s rejection of claim 25
for similar reasons.
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Obviousness over Yu and Lin
Claim 21
We do not find error in the Examiner’s obviousness rejection of claim
21 over Yu and Lin.
The Examiner and we find Yu disclosing at least one aperture 25a,
25b, or 25c, and these apertures are shown in Yu figure 3 with vertical walls
(Ans. 7; FF 7). From these findings the Examiner concludes that Yu
“teach[es] all the features of the claim with the exception of explicitly
disclosing the aspect ratio of the via” (Ans. 7). Turning to Lin, the Examiner
finds a taught “via (7) defined in a polymer layer (5) having an aspect ratio
of greater than 1 . . .” (id.). We also find Lin disclosing that a via 7 having
an “aspect ratio of about 5 is acceptable for . . . via etching and . . . filling”
(FF 9).
Appellants apparently assert, arguendo, that “Lin may disclose a via
with an aspect ratio greater than one, however there is no teaching, showing
or suggestion of vertical sidewalls of the via hole which would result in a via
hole having substantially the same diameter throughout it’s [sic] depth”
(App. Br. 11). Irrespective of whether Appellants are referring to either Lin
vias 7 or Yu apertures 25a, 25b, or 25c, we find both references showing the
respective walls to be both vertical and parallel (FF 7, 8). Therefore, we are
not persuaded by this argument, because in having parallel vertical walls the
Yu and Lin subject holes consequently have substantially the same
diameters throughout their depths.
Alternatively, Appellants traverse “the Examiner’s rejection as an
obvious matter of design choice to define a via having an aspect ratio greater
than 1” (App. Br. 12). The Examiner responds with a reference to a Lin
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disclosure and relevant case law. “‘[T]he aspect ratio of opening 7 is
designed such that filling of the via with metal can be accomplished’
paragraph [0050]. From this teaching, the aspect ratio of the via is clearly an
obvious design choice. In re Rose, 105 USPQ 237 (CCPA 1955).” (Ans. 14).
Beyond teaching that the aspect ratio of Lin via 7 is designed for
accomplishing metal filling, we also find Lin explicitly disclosing that a via
7 “aspect ratio of about 5 is acceptable for . . . via etching and . . . filling”
(FF 9). Consequently, we are not persuaded by Appellants’ arguments, and
we will sustain the Examiner’s rejection under § 103(a) of claim 21 over Yu
and Lin.
Obviousness over Lin (‘369)
Claims 23 and 24
Appellants collectively argue dependent claims 23 and 24 (App. Br.
13, 14), which respectively recite that their base independent claim 22
covered “via includes a tapered sidewall extending at least one-third [or up
to one-half] of the depth thereof.”
The Examiner identifies that these claims exclusively recite a
“particular chosen dimension.” In view of this claiming, the Examiner,
relying on In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990), concludes
the claims are obvious over Lin (‘369) because Appellants’ “specification
contains no disclosure of either the critical nature of the claimed extending
of the tapered sidewall in the range from one-third to one-half [or] any
unexpected results arising therefrom” (Ans. 9) (emphasis deleted).
Appellants’ argument is that the claims are “supported . . . in the
specification at paragraphs [0027], [0033], and [0036] . . .” (App. Br. 13).
Appellants assert Specification “support,” but do not argue, and we have not
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identified, any teaching or suggestion in the present record for any “critical
nature” or “unexpected results” associated with how far a tapered sidewall
extends into a via, including any teaching away from this claimed subject
matter. See Iron Grip, 392 at 1322. Consequently, we are not persuaded by
Appellants’ argument.
We will sustain the Examiner’s rejection under § 103(a) of claims 23
and 24 over Lin (‘369).
Claims 26 and 27
Appellants collectively argue dependent claims 26 and 27 (App. Br.
13, 14), which respectively recite that their base independent claim 25
covered “via includes a tapered sidewall extending at least one-third [or up
to one-half] of the depth thereof.”
Appellants’ arguments with respect to claims 26 and 27 (App. Br. 13,
14) are merely reiterations of those we considered with respect to claims 23
and 24 above. Accordingly, we will sustain the Examiner’s rejection of
claims 26 and 27 for similar reasons.

CONCLUSIONS
Appellants have not shown that the Examiner erred in rejecting claims
21, 22, and 25 under § 102(b) as anticipated by Lin (‘369).
Appellants also have not shown that the Examiner erred in rejecting
claim 21 under § 103(a) over Yu and Lin.
Appellants further have not shown that the Examiner erred in rejecting
claims 23, 24, 26, and 27 under § 103(a) over Lin (‘369).
DECISION
The Examiner’s decisions rejecting claims 21-27 are affirmed.
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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).

AFFIRMED

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