Ex Parte Wuister et al

Patent Trial and Appeal Board

Jul 15, 2016

11889213 (P.T.A.B. Jul. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111889,213 08/09/2007
909 7590 07119/2016
Pillsbury Winthrop Shaw Pittman, LLP (NV)
PO Box 10500
McLean, VA 22102
FIRST NAMED INVENTOR
Sander Frederik Wuister
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.
081468-0362916 9991
EXAMINER
COLEMAN, RY AN L
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
07/19/2016 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):
docket_ip@pillsburylaw.com
heather.marthers@pillsburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SANDER FREDERIK WUISTER,
V ADIM YEVGENYEVICH BANINE, and
MAARTEN MARINUS JOHANNES VAN HERPEN
Appeal2015-002227
Application 11/889,213
Technology Center 1700
Before: ROMULO H. DELMENDO, N. WHITNEY WILSON and
AVEL YN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from a rejection of
claims 1--4, 6, 7, 9--25, 29, and 30. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 In our decision below, we refer to the Final Office Action appealed from,
mailed May, 9, 2014 (Final Act.), the Appeal Brief filed October 3, 2014
(Appeal Br.), the Examiner's Answer mailed November 3, 2014 (Ans.), and
the Reply Brief filed December 31, 2014 (Reply Br.).
2 Appellants identify the real party in interest as ASML Netherlands, B.V.
Appeal Br. 2.
Appeal2015-002227
Application 11/889,213
STATEMENT OF CASE
The claims are directed to cleaning methods, and in particular,
methods for cleaning imprint lithography templates. Spec. i-f l. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of cleaning an imprint template at least partially
formed from glass, fused silica or quartz, the method comprising:
exposing the imprint template to a reductive fluid that
causes reduction of material on the imprint template; and
exhausting gaseous reaction products formed during the
reduction of the material from a vicinity of the imprint template.
Claims Appendix at Appeal Br. 11.
REJECTIONS
The Examiner made the following rejections:
A. Claims 1--4, 6, 7, 9-13, 20-25, 29, and 30 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over
Dibiase3 in view of Muranaka, 4 and in view of Sandhu. 5
Final Act. 3.
B. Claims 15-17 stands rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dibiase in view of Muranaka, in
view of Sandhu, and in further view of Yabuta. Id. at 7.
C. Claim 14 stands rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dibiase in view of Muranaka, in
view of Sandhu and in further view ofVadim. Id. at 9.
3 Dibiase, US 7 ,846,266 B 1, issued December 7, 2010 (hereinafter
"Dibiase").
4 Muranaka et al., US 6,410,454 B 1, issued June 25, 2002 (hereinafter
"Muranaka").
5 Sandhu et al., US 2003/0102008 Al, published June 5, 2003 (hereinafter
"Sandhu").
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Application 11/889,213
D. Claims 18 and 19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Dibiase in view of Muranaka
in view of Sandhu (as applied to claim 1) and further in
view of Freriks. Id. at 10.
Appellants seek our review of Rejections A-D. But, Appellants argue
only independent claim 1 and do not present any arguments for claims 2--4,
6, 7, 9-13, 20-25, 29, and 30 separate from what is argued for claim 1.
Appeal Br. 7-9. Therefore, we focus our discussion on Rejection A, and in
particular, claim 1 to resolve the issues on appeal.
OPINION
The Examiner rejects claim 1 (among others) under 3 5 U.S. C. § 1 0 3 (a)
as being unpatentable over Dibiase in view of Muranaka, and in view of
Sandu. Final Act. 3. The Examiner finds that the combination of Dibiase,
Muranaka and Sandu teach all aspects of the claimed invention. Id. at 3-5.
The Examiner further finds that one skilled in the art would have been
motivated
to modify the method of Dibiase by using the hydrogen radical
cleaning method of Muranaka to remove the organic residue
from the imprint lithography template. The motivation for
performing the modification was provided by Muranaka, who
teaches that his hydrogen radical cleaning method can
advantageously remove undesired organic from a surface ....
Id. at 4. Moreover, the Examiner finds that the skilled artisan would be
motivated to include Sandhu in the combination of Dibiase and Muranaka
because adding a pump to remove gaseous products would "prevent the
gaseous reaction products from becoming undesirably deposited on the
template after they are formed." Id. at 5. The Examiner reasons that this is
consistent with Sandhu's teachings "that when a surface is being cleaned by
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Application 11/889,213
reacting surface contaminants with activated reactive species that have been
formed by the dissociation of a precursor gas, a pump can advantageously be
used to remove the resulting gaseous products from the vicinity of the
treated surface." Id.
Appellants do not dispute that the Examiner's recited combination
meets the limitations of claim 1; rather, Appellants argue that the
Examiner's reasons for combining the references are not sufficient to sustain
the obviousness rejection. Appeal Br. 6. First, Appellants assert that no
reason exists to combine Dibiase to include the surface cleaning method of
Muranaka because Dibiase "already discloses (and claims) methods for
removing contaminants from the template" and the combination "would
change the principle of operation of Dibiase."
The Examiner finds that "Dibiase teaches that a template
contaminated can be cleaned by using energized gaseous species to remove
organic residue." Ans. 11. Therefore, finds the Examiner, "it would have
been obvious ... to modify the method of Dibiase by using the hydrogen
radical cleaning method of Muranaka to remove organic residue from the
imprint lithography plate because Muranaka teaches that his hydrogen
radical cleaning method can advantageously remove undesired organic [sic]
from a surface." Id. The Examiner also finds that neither Muranaka nor
Sandhu changes the principle of operation of Dibiase. Ans. 12-13. The
Examiner explains that Dibiase teaches using 0 2 or 0 3 plasma to remove
organic residue while Muranaka teaches using activated hydrogen gas to
remove organic residue. Id. at 12. Therefore, using the activated gas of
Muranaka in the method of Dibiase to remove surface organics from the
surface of an imprint lithography template does not change the principle of
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Application 11/889,213
operation. Id. at 12-13. Moreover, applying the pump of Sandhu to remove
the gas reaction products from the surface of the template does not change
the principle of operation of Dibiase. Id. 13-14.
We agree with the Examiner and adopt the Examiner's findings and
reasomng as our own. We add the following for emphasis. We understand
Appellants argue that
Dibiase discloses the method of rinsing the template with
oxygenated or hydrogenated DI water and exposure to a reactive
plasma to remove organic contaminant and also coating film of
a water soluble polymer [is formed] on the template and then
peeling off the coating film and removing organic residue from
the film using oxygenated plasma" and that it is this operation
which does not take place in the combination of Dibiase and
Muranaka.
Appeal Br. 6. We find that the cleaning method employing the "peeling
step" of Dibiase is an alternative embodiment (see col. 3, 11. 1-3 (description
of Fig. IB)) and the specification teaches embodiments that do not include
the "peeling step" yet still utilize a reactive gaseous species to clean the
surface of the template. See Fig. IA and col. 3, 11. 22-20 (describing a
cleaning method of Fig. 1 A without a "peeling step")), and compare col. 6,
11. 60-col. 7, 11. 4 (claim 1) to col. 7, 11. 15-21 (claim 7). Thus, because both
Dibiase and Muranaka teach removal of organic debris from a surface using
activated gaseous species, we are not persuaded by Appellants' principle of
operation argument. We also agree with the Examiner, for the reasons stated
in the Answer, that Sandhu does not change the principle of operation for
Dibiase. 6 Ans. 6. Sandhu is germane for teaching a pump to exhaust
6 Appellants do not specify which reference, Muranaka or Sandhu, changes
the principle of operation of Dibiase. Appeal Br. 6.
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Application 11/889,213
gaseous reaction products away from the template so that the reaction
products are not deposited on the template. Id. And, modifying the
teachings of Dibiase to include a pump does not change the principle of
operation for Dibiase.
Second, Appellants contend that no motivation is provided to include
Sandhu in the combination of Dibiase and Muranaka because "Sandhu does
not characterize the pump as providing an advantage." Appeal Br. 6.
The Examiner, however, finds that
Sandhu teaches that when a surface is being cleaned by reacting
surface contaminants with activated reactive species that have
been formed by the dissociation of a precursor gas, a pump (item
34 in Figure 2) can be used to remove the resulting gaseous
products (that is, the products formed from the reactions between
the targeted contaminants and the activated species) from the
vicinity of the treated surface (Par. 0021-0024 and 0040-0045).
Ans. 14. Therefore, the Examiner concludes that one skilled in the art would
have found it obvious to modify Dibiase and Muranaka to include a pump to
withdraw gaseous reaction byproducts from the surface of the template. Id.
at 14--15.
We agree with the Examiner. One of ordinary skill can use his or her
ordinary skill, creativity, and common sense to make the necessary
adjustments and further modifications to result in a properly functioning
device. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) ("a
court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ"). "[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
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Application 11/889,213
obvious unless its actual application is beyond his or her skill." See id. at
417.
Here, as the Examiner correctly finds (Ans. 14), Sandhu teaches that
the products resulting from the reaction of the active gaseous species and the
surface of the wafer can be exhausted to control the surface treatment and
atmosphere. Sandhu i-fi-126, 32, and 44. Thus, like the Examiner, we
conclude that a person skilled in the art would have reason to modify the
method of Dibiase and Muranaka-using no more than ordinary skill,
creativity, and common sense-to provide a pump to withdraw the gaseous
reaction products from the surface of the template to prevent deposition on
the surface. Id. at 14--15. That Sandhu does not expressly characterize the
withdrawal of gaseous reaction products as "advantageous" does not mean
that it is not in fact an advantage, as Appellants suggest. The skilled artisan
would have reason to utilize the pump of Sandhu in the Dibiase/Muranaka
method for the same purpose as used in Sandhu and would have reason to
expect the same result. KSR, 550 U.S. at 417.
We conclude that the skilled artisan would have found the Appellants'
invention obvious in light of the combined teachings of Dibiase, Muranaka
and Sandhu.
In reply, Appellants present three additional arguments not considered
by the Examiner and none of which we find persuasive of reversible error. 7
7 The Reply Brief contains a new arguments which could have been but were
not presented in the Appeal Brief. Under regulations governing appeals to
the Board, a new argument not timely presented in the Appeal Brief will not
be considered when filed in a Reply Brief, absent a showing of good cause
explaining why the argument could not have been presented in the Appeal
Brief. Cf Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010)
(informative) ("Properly interpreted, the Rules do not require the Board to
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Application 11/889,213
Appellants begin by contending the Examiner engaged in improper hindsight
reconstruction. Reply Br. 3--4. Appellants urge Dibiase teaches "dry
cleaning the template with a reactive plasma containing 0 2 or 0 3, forming a
coating film" and then peeling the film off of the template to remove the
residue. Reply Br. 3. And, according to Appellants, "Muranaka does not
disclose, teach, or remotely suggest that its method of removing
contaminants on the surface of a semiconductor wafer in a film-forming ...
process is suitable to clean imprint templates." Reply Br. 4. Appellants
further argue that while Muranaka does teach use of hydrogen radicals,
"Muranaka is clearly referring to the use of etching to clean the surface of a
semiconductor wafer in the prior art." Id. Therefore, say Appellants, no
motivation (in the absence of hindsight) exists for the combination.
We disagree. Dibiase clearly teaches that optical surfaces, such as
imprint templates, semiconductor swfaces and photomasks need to be
cleaned to remove organic residue. Dibiase, col. 2, 11. 16-27. Muranaka
teaches the removal of organic residue from wafer surfaces. Muranaka, col.
4, 11. 50-col. 5, 11. 13 and col. 10, 11. 4--6 and 15-19. Both Dibiase and
Muranaka utilize gaseous radicals for the removal of the unwanted organics
from surfaces. Dibiase col. 2, 11. 45-59 and Muranaka, col. 4, 11. 50-col. 5,
11. 13. The Examiner finds that "[ t ]he motivation for performing the
modification was provided by Muranaka who teaches that his hydrogen
radical cleaning method can advantageously remove undesired organic from
take up a belated argument that has not been addressed by the Examiner,
absent a showing of good cause."), as well as 3 7 C.F .R. § 41.3 7 and § 41.41.
Because the record contains no such showing, these new arguments are
ineffective in this appeal. However, we briefly discuss why, if timely-filed
and considered, these arguments would not be persuasive of reversible error.
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Application 11/889,213
a surface." Final Act. 4. Thus, we observe no evidence of improper
hindsight in this analysis.
Appellants next argue that if it is so obvious to use a reductive fluid
and exhaust the gaseous reaction products then why did Dibiase not disclose
such an embodiment earlier. Reply Br. 5. We again disagree. Appellants
seem to argue for an elevated obviousness standard, i.e., one that rises to the
level of anticipation. No such heightened requirement exists and Appellants
argument is unconvincing.
Finally, Appellants argue that because Muranaka and Sandhu do not
teach an "environmentally friendly" method to remove contaminants these
references are not suitable for the intended purpose of Dibiase. Reply Br. 6.
We are not persuaded as Appellants have not established the proposed
change would result in such a change that renders Dibiase unsuitable for its
intended purpose such that it would make the claimed invention nonobvious.
"Counsel's argument cannot take the place of evidence lacking in the
record." Estee Lauder Inc. v. L 'Orea!, S.A., 129 F.3d 588, 595 (Fed. Cir.
1997). Moreover, Dibiase criticizes conventional methods of contaminant
removal, i.e., "wet chemical cleaning" methods, because such methods often
"involve[] hazardous and corrosive chemicals that must be disposed
somehow." Dibiase, col. 2, 11. 6-15. It is the disposal of these chemicals
that "presents [the] environmental hazard" Dibiase seeks to overcome. Id.
Similarly, Muranaka criticizes wet cleaning methods, albeit for different
reasons. Muranaka, col. 1, 11. 34--49. The solutions of both Dibiase and
Muranaka avoid wet cleaning methods in favor of using reactive gaseous
species to remove organic contaminants. Dibiase, col. 6, 11. 33--42 and
Muranaka, col. 1, 11. 61---65. Appellants do not explain how Muranaka
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would have any negative effect on the "environmental friendliness" of
Dibiase. Nor have Appellants explained how the addition of Sandhu-
teaching use of pump to remove reaction products-would render the
Dibiase unsuitable for its intended purpose. Accordingly, we are
unconvinced the proposed combination renders Dibiase unsuitable for its
intended purpose.
CONCLUSION
The Examiner did not reversibly err in rejecting claims 1--4, 6, 7, 9--
25, 29, and 30 as unpatentable under 35 U.S.C. § 103(a)
DECISION
For the above reasons, the Examiner's rejection of claims 1--4, 6, 7, 9--
25, 29, and 30 is affirmed.
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) (2009).
AFFIRMED
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