Kathrine Giles et al.

Patent Trials and Appeals Board

Aug 29, 2019

12972602 - (D) (P.T.A.B. Aug. 29, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
12/972,602 12/20/2010 Kathrine Giles WLJ.165 1219
20987 7590 08/29/2019
VOLENTINE, WHITT & FRANCOS, PLLC
ONE FREEDOM SQUARE
11951 FREEDOM DRIVE, SUITE 1300
RESTON, VA 20190
EXAMINER
LOUIE, MANDY C
ART UNIT PAPER NUMBER
1715
NOTIFICATION DATE DELIVERY MODE
08/29/2019 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):
aloomis@volentine.com
cjohnson@volentine.com
iplaw@volentine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KATHRINE GILES, ANDREW PRICE, STEPHEN ROBERT
BURGESS, and DANIEL THOMS ARCHARD
____________

Appeal 2018-009169
Application 12/972,602
Technology Center 1700
____________

Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL1

The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1, 3–9, 13, 14, and 16–19.3
We AFFIRM.

1 This Decision includes citations to the following documents: Specification
filed December 20, 2010, as amended (“Spec.”); Final Office Action dated
November 2, 2017 (“Final”); Appeal Brief filed March 2, 2018 (“Appeal
Br.”); Examiner’s Answer dated July 27, 2018(“Ans.”); and Reply Brief
filed September 27, 2018 (“Reply Br.”).
2 The Appellants identify SPP Process Technology Systems UK Limited as
the real party in interest. Appeal Br. 3.
3 We have jurisdiction under 35 U.S.C. § 6(b).
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“Th[e] invention relates to a method of depositing SiO2 films and in
particular to depositing such films below 250°C using plasma enhanced
chemical vapour deposition (PECVD).” Spec. 1:3–5. According to the
Appellants, “in addition to minimal thickness, desirable characteristics of an
SiO2 film may include good ‘step’ coverage, i.e., a good ability to be formed
conformally with respect to the topology of the substrate (so as to avoid
current leakage when in normal use), and non-absorbency.” Appeal Br. 7. A
goal of the invention is “to produce SiO2 films having one or more of such
desirable characteristics.” Id.
Independent claims 1 and 8 are representative of the claims on appeal,
and are reproduced below.
1. A plasma enhanced chemical vapour deposition
(PECVD) method of forming a film, comprising:
supplying tetraethyl orthosilicate (TEOS) and O2, as the
precursors of the film, into a process chamber through a
showerhead, and
producing a plasma with an O2/TEOS ratio of between
15:1 and 25:1 from the precursors, wherein the producing of the
plasma comprises supplying RF power to the showerhead at a
mixed first radio-frequency and second radio-frequency lower
than the first radio-frequency to excite the precursors; and
forming an inorganic film of SiO2 on a substrate in a
chamber, at a temperature below 250°C, by exposing the
substrate to the plasma.
8. A plasma enhanced chemical vapor deposition
(PECVD) method of forming a film, the method comprising:
loading a substrate on a support in a chamber;
supplying a tetraethyl orthosilicate (TEOS) precursor and
an oxygen containing precursor and producing a plasma from
the precursors,
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forming a conformal film of SiO2 on the substrate by
exposing the substrate to the plasma while the substrate is
disposed on the support and without electrically biasing the
support; and
treating the film of SiO2 on the substrate in situ with a
plasma of only H2 at a process temperature of 200° C or less
also while the substrate is disposed on the support and without
electrically biasing the support.
Appeal Br. 33–34 (Claims Appendix).
The Examiner relies on the following references as evidence of
unpatentability:
Sutcu US 5,549,604 Aug. 27, 1996
Law US 6,024,044 Feb. 15, 2000
Lee US 6,103,601 Aug. 15, 2000
Berry, III US 2001/0038919 A1 Nov. 8, 2001
Maeda US 6,524,972 B1 Feb. 25, 2003
Owada US 2006/018017 A1 Aug. 10, 2006
Kumar US 2006/0216932 A1 Sept. 28, 2006
Wagner US 7,968,146 B2 June 28, 2011

D. A. DeCrosta et al., Characterization of High Oxygen:
Tetraethylorthosilicate Ratio Plasma-Enhanced Chemical Vapor Deposited
Films, 143 J. Electrochem. Soc. 1079–1084 (March 1996).

The Examiner maintains the following rejections on appeal (Ans. 3–
134):
1. claims 8, 9, and 17–19 under 35 U.S.C. § 112(a) or 35 U.S.C.
§ 112 (pre-AIA), first paragraph, as failing to comply with the written
description requirement;

4 The Examiner has withdrawn the rejection of claim 8 under 35 U.S.C.
§ 112(a) or 35 U.S.C. § 112 (pre-AIA), first paragraph, as lacking support
for “conformal,” and the rejection of claim 1 under 35 U.S.C. § 112(b) or
35 U.S.C. § 112 (pre-AIA), second paragraph. Id. at 13–14.
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2. claims 1, 3, and 4 under 35 U.S.C. § 103(a) as unpatentable
over Lee, as evidenced by DeCrosta, and in view of Law;
3. claims 1, 3, and 4 under 35 U.S.C. § 103(a) as unpatentable
over Lee, as evidenced by DeCrosta, and in view of Law, as evidenced by
Sutcu;
4. claims 5, 8, 9, 13, 14, 16, and 17 under 35 U.S.C. § 103(a) as
unpatentable over Lee, as evidenced by DeCrosta, and in view of Law, and
further in view of Owada and Berry III;
5. claim 6 under 35 U.S.C. § 103(a) as unpatentable over Lee, as
evidenced by DeCrosta, and in view of Law, Owada, and Berry III, and
further in view of Wagner;
6. claim 6 under 35 U.S.C. § 103(a) as unpatentable over Lee, as
evidenced by DeCrosta, and in view of Law, Owada, and Berry III, and
further in view of Kumar; and
7. claims 7, 18, and 19 under 35 U.S.C. § 103(a) as unpatentable
over Lee, as evidenced by DeCrosta, and in view of Law, Owada, and Berry
III, and further in view of Maeda.

Rejection under 35 U.S.C. § 112, written description requirement
The Examiner determined claim 8 and its dependent claims 9 and 17–
195 lack written descriptive support because the “closest support” for the

5 In the Final Office Action, the Examiner identifies claims 5–7 as being
subject to this ground of rejection. See Final 2–3. Claims 5–7, however, do
not include the language identified by the Examiner as lacking written
descriptive support. See Appeal Br. 33–34 (Claims Appendix). We view this
mistake as harmless error, as the Appellants are clearly aware that the
Examiner intended to reject claims 8, 9, and 17–19. See Appeal Br. 10–12
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claim 8 phrase “without electrically biasing the support” is “found [in] Fig.
17 showing the wafer support (13) being grounded (symbol). As such, this
disclosure is insufficient to show the necessary absence of an electrical bias
to the support.” Final 2–3. In the Answer, the Examiner further explains that
“[t]he scope of ‘without electrically biasing the support’ also includes an
electrically floating substrate and not necessarily only a grounded substrate.
And since only a grounded wafer was . . . disclosed, [A]ppellant[s’] original
specification is deficient in supporting the full scope of ‘without electrically
biasing the support.’” Ans. 4.
The Appellants contend “[t]he Examiner’s statement refers to the
scope of the claim being broad enough to encompass a case in which the
substrate is ‘floating on’ (i.e., electrically isolated relative to) the substrate
support.” Reply Br. 3. The Appellants argue “the condition of the substrate
on the support is irrelevant as to whether the support is electrically
biased.” Id.
A description as filed is presumed to be adequate, unless or until
sufficient evidence or reasoning to the contrary has been presented by the
Examiner to rebut the presumption. See In re Marzocchi, 439 F.2d 220, 224
(CCPA 1971). The Examiner, therefore, must have a reasonable basis to
challenge the adequacy of the written description. The Examiner has the
initial burden of demonstrating that a person of ordinary skill in the art
would not recognize in an applicant’s disclosure a description of the

(arguing the Specification supports the claim 8 recitation of “without
electrically biasing the support”); Ans. 3 (correctly listing claims 8, 9, and
17–19 as subject to this ground of rejection).
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invention defined by the claims. In re Wertheim, 541 F.2d 257, 263 (CCPA
1976).
The Appellants have argued persuasively that the Examiner has not
explained with sufficient clarity why the written description must include a
description of an electrically floating substrate in order to provide support
for a limitation relating to the substrate support. However, although we
determine the Examiner’s articulated reasoning is insufficient to support the
rejection, we agree with the Examiner that the argued claim language lacks
written description support under 35 U.S.C. § 112(a) or 35 U.S.C. § 112
(pre-AIA), first paragraph.
The claim 8 phrase “without electrically biasing the support” is a
negative claim limitation. With respect to negative limitations, our reviewing
court has determined that an “express intent to confer on the claim language
the novel meaning imparted by [the] negative limitation” is required, such as
an “express disclaimer or independent lexicography in the written
description.” Omega Engineering, Inc. v. Raytek Corp., 334 F.3d 1314, 1323
(Fed. Cir. 2003) (internal citations omitted); see also Santarus, Inc. v. Par
Pharm, Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012) (“Negative claim
limitations are adequately supported when the specification describes a
reason to exclude the relevant limitation.”). The written description fails to
meet this requirement. Accordingly, we sustain the rejection of claims 8, 9,
and 17–19 under 35 U.S.C. § 112(a) or 35 U.S.C. § 112 (pre-AIA), first
paragraph, but denominate our affirmance a new ground of rejection because
our reasoning differs from the Examiner’s.

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Rejections of claims 1, 3, and 4 under 35 U.S.C. § 103(a)
The Examiner rejected claims 1, 3, and 4 under 35 U.S.C. § 103(a)
over Lee, as evidenced by DeCrosta, and in view of Law. See Final 4–6. The
Examiner also rejected these claims over the same references, but added
Sutcu as further evidence of unpatentability. Id. at 6–7. The Appellants
argue the claims as a group. See generally, Appeal Br. 16–28. Accordingly,
we decide each rejection of claims 1, 3, and 4 on the basis of claim 1. See
37 C.F.R. § 41.67(c)(1)(vii) (2017).
As an initial matter, we note that in their Appeal Brief, the Appellants
argue the Examiner’s rejections are based on an erroneous interpretation of
the claim 1 term “inorganic film of SiO2.” See Appeal Br. 17. The
Appellants concede there is no explicit definition of this term in the
Specification, and contend it should be given its ordinary and customary
meaning of “a film of SiO2 that is substantially free of carbon.” Id. In
support of their claim construction, the Appellants rely on disclosure in
pages 1–2 of the Specification, and Raballand, Journal of Applied Physics
105, 083304 (2009). Appeal Br. 17–19. The Examiner, upon review of the
Specification and Raballand, as well as the Declaration of Dr. John MacNeil
under 37 C.F.R. § 1.132, executed July 26, 2017, and submitted by the
Appellants on July 27, 2017, determines the broadest reasonable scope of
“inorganic film of SiO2” is a silicon dioxide film that may contain minute or
trace amounts of carbon. Ans. 14–15. The Appellants indicate they accept
this interpretation for purposes of this appeal “insofar as an SiO2 film with a
trace amount of carbon is considered ‘a film of SiO2 that is substantially free
of carbon.’” Reply Br. 5. Having reviewed the Specification and the
Appellants’ extrinsic evidence, we agree that the broadest reasonable
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interpretation of “inorganic film of SiO2” encompasses an SiO2 film
containing trace amounts of carbon. See, e.g., MacNeil Decl. ¶ 10 (“I believe
it would be generally understood by an expert in semiconductor process
technology that an ‘inorganic’ SiO2 film would [be] one which did not
contain ‘significant’ amounts of organic compounds within the SiO2 film.”).
Accordingly, we apply this interpretation in our analysis of the prior art
rejections.
The Examiner found Lee discloses the method recited in claim 1 with
the exceptions that Lee does not disclose explicitly that the “undoped silicate
glass (USG) . . . capping layer” (Lee 7:44) is a silicon dioxide film, or
supplying RF power to the showerhead at mixed first and second radio-
frequencies. Final 4–5. The Examiner relied on DeCrosta as evidence that
PECVD USG films deposited with TEOS and oxygen, as in Lee’s method,
are silicon dioxide films. Id. at 4 (citing DeCrosta p. 1082, col. 2). The
Examiner relied on Law for a teaching of supplying RF power at two
different radio frequencies. Id. at 5 (citing Law 2:60–65).
The Appellants do not dispute the Examiner’s finding that the claimed
range for the O2/TEOS ratio of the plasma of “between 15:1 and 25:1”
(claim 1) is encompassed by Lee’s preferred range of “between about 0.3–
30:1” (Lee 8:1–2). See Final 4; Appeal Br. 20–22. Nor do the Appellants
dispute the Examiner’s finding that the claimed chamber temperature range
of “below 250°C” (claim 1) overlaps with Lee’s range of “about 100–
500°C” (Lee 7:53–54). See Final 4; Appeal Br. 20. The Appellants argue,
however, that “[t]he number of species of processes having temperature and
O2:TEOS ratio process conditions falling within these ranges are so
numerous for practical purposes [as] to be nearly infinite.” Appeal Br. 21.
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The Appellants also contend the Examiner’s rejection is based on
impermissible hindsight, as evidenced by the Examiner’s reliance on (1)
Lee’s preferred range for O2/TEOS ratio of “between about 0.3–30:1” rather
than Lee’s disclosure that a typical O2/TEOS ratio is about 10:1 (see Lee
8:2–3) or Lee’s working example wherein O2/TEOS ratio is 1.4:1 (Appeal
Br. 22 (citing Lee 12:28–33))—both outside the claimed range of “between
15:1 and 25:1,” and (2) Lee’s broadest temperature range of “about 100–
500°C” rather than Lee’s preferred temperature range of “360–440 °C” and
a most preferable temperature of “400 °C” (id. (citing Lee 7:51–58, 12:23–
27)).
In support of their arguments, the Appellants quote MPEP
§ 2144.08(II): “The fact that a claimed species or subgenus is encompassed
by a prior art genus is not sufficient by itself to establish a prima facie case
of obviousness. In re Baird, 16 F.3d 380, 382 . . . (Fed. Cir. 1994).” MPEP
§ 2144.08 is referenced by MPEP § 2144.05, which reads, in relevant part,
[a] prior art reference that discloses a range encompassing a
somewhat narrower claimed range is sufficient to establish a
prima facie case of obviousness.” In re Peterson, 315 F.3d
1325, 1330 . . . (Fed. Cir. 2003). . . . However, if the
reference’s disclosed range is so broad as to encompass a very
large number of possible distinct compositions, this might
present a situation analogous to the obviousness of a species
when the prior art broadly discloses a genus. Id.”

In Peterson, however, the Federal Circuit expressly declined to
determine whether or not a disclosed range might be too broad to render
prima facie obvious a narrower range within it:
Although ranges that are not especially broad invite routine
experimentation to discover optimum values, rather than require
nonobvious invention, we do not have here any assertion that
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the disclosed range is so broad as to encompass a very large
number of possible distinct compositions. We thus do not
need to decide whether a disclosed range of such breadth
might present a situation analogous to our cases involving
the failure of a very broad disclosed genus of substances to
render prima facie obvious specific substances within its
scope. See, e.g., In re Baird, 16 F.3d 380 . . . (Fed. Cir.
1994); In re Jones, 958 F.2d 347 . . . (Fed. Cir. 1992).
Peterson, 315 F.3d at 1330, n.1 (emphasis added). Absent clear direction
from our reviewing court, we decline to apply the analysis in In re Baird,
which related to the obviousness of selecting a particular diphenol from “[a]
vast number of diphenols encompassed by the [prior art] generic diphenol
formula,” Baird, 16 F.3d at 383, to the overlapping ranges in the present
appeal. Rather, we apply the established precedent that a prima facie case of
obviousness typically exists when ranges of a claimed composition overlap
ranges taught by the prior art. See, e.g., In re Harris, 409 F.3d 1339, 1341
(Fed. Cir. 2005); Peterson, 315 F.3d at 1329.
Where the Examiner establishes a prima facie case of obviousness the
burden is shifted to the Applicants to show facts supporting the opposite
conclusion. In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984).
Accordingly, we now consider the Appellants’ arguments that the prior art
teaches away from the claimed invention and the Appellants’ evidence of
unexpected results.
The Appellants contend DeCrosta discloses a 1–4:1 O2/TEOS ratio
“which is inside the range of ratios disclosed overall by Lee . . ., and close to
the ratio of the working example of Lee . . ., but far outside Appellants’
claimed range. Therefore, DeCrosta . . . when considered with Lee . . .
teaches away from the present invention as claimed in claim 1.” Appeal Br.
23–24.
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The Appellants’ argument is not persuasive. As found by the
Examiner, Lee discloses a range of O2/TEOS ratios that overlaps the claimed
range, which is sufficient to establish a prima facie case of obviousness, see
Peterson, 315 F.3d at 1329. Final 4. DeCrosta was relied on solely as
evidence that the PECVD USG films deposited with TEOS and oxygen in
Lee’s method are silicon dioxide films. See Ans. 16; Final 4. Moreover, the
Appellants have not explained why the absence of a disclosure in DeCrosta
of O2/TEOS ratios inside the claimed range would have led the ordinary
artisan in a direction divergent from the path taken by the present inventors.
See Appeal Br. 23–24; Reply Br. 7; In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994).
The Appellants cite the MacNeil Declaration and Application Figures
11 and 12, and corresponding description thereof, as evidence of unexpected
results. Appeal Br. 24–25. Application Figures 11 and 12 are described as
evidencing that reabsorbtion is reduced and leakage characteristics are
improved when RF power is applied at a mixed, as opposed to a single, radio
frequency. See Spec. 8:23–9:11. The Appellants have not explained,
however, why the same improvements would not have resulted from the
combination of Lee and Law, as Law suggests supplying RF power at two
different radio frequencies. See Law 2:60–65; Final 5.
The Appellants reference paragraph 11 of the MacNeil Declaration as
support for their contention that “those of ordinary skill in the art would
expect that ‘[e]thoxy and silanol groups become more prevalent in films
deposited at reduced temperature.’ And carbon contamination through
incorporation of ethoxy groups leads to a degraded dielectric characteristic.”
Appeal Br. 24. Dr. MacNeil testified that “Lee . . . believe[s] these
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impurities are undesirable . . . [and] indicate[s] that a[n] O2/TEOS ratio
>33:1 is recommended for the deposition of high quality SiO2 films to avoid
undesirable levels of impurities.” Decl. ¶ 11. Dr. MacNeil does not cite, nor
do we find, a disclosure in Lee in support of this statement. To the contrary,
as noted above, Lee teaches a preferred O2/TEOS ratio of 0.3–30:1. Lee 8:1–
2.
Dr. MacNeil testified that Application Figures 13–15 show leakage
current is inferior at an O2/TEOS ratio of 6:1 as compared to 15:1 and
22.7:1. Decl. ¶ 11. This evidence is not persuasive of unexpected results,
however, because the evidence is insufficient to show criticality in the
claimed range, e.g., leakage currents at O2/TEOS ratios just outside the
claimed range of “between 15:1 and 25:1” (claim 1) were not tested. Dr.
MacNeil also testified that “Fig 8 demonstrates that step coverage improves
with increase in temperature and O2/TEOS flow for 15:1–22.7:1 over the
temperature range 175–250°C.” Id. This evidence fails to show criticality in
the much broader, claimed range of “below 250°C” (claim 1). See Spec.
9:24–10:1 (“It is envisaged that films may be deposited at temperatures as
low as 125°C.”); see also Peterson, 315 F.3d at 1329–31 (evidence of
unexpected results must be commensurate in scope with the claims).
In sum, having considered the Appellants’ arguments and evidence of
secondary considerations, we determine a preponderance of the evidence
weighs in favor of the Examiner’s conclusion that claims 1, 3, and 4 are
unpatentable under 35 U.S.C. § 103(a) over Lee, as evidenced by DeCrosta,
and in view of Law.
In the second rejection of claims 1, 3, and 4, the Examiner relied on
the same references—Lee, as evidenced by DeCrosta, and in view of Law—
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but additionally relied on Sutcu “as evidence that the purity of [a] silica film
can be controlled by TEOS:O2 ratio.” Final 6 (citing Sutcu 4:5–10). This
additional rejection was made in the event we determined the broadest
reasonable interpretation of the claim 1 term “inorganic silicon dioxide film”
required a film that is free of impurities. See id. Because we interpret
“inorganic film of SiO2” as encompassing an SiO2 film containing trace
amounts of carbon, we decline to reach this ground of rejection.
Rejections of claims 5–9, 13, 14, and 16–19 under 35 U.S.C. § 103(a)
The Appellants’ arguments in support of patentability of claims 5, 8,
9, 13, 14, 16, and 17 are based on limitations common to independent claim
8 and dependent claim 5. See generally, Appeal Br. 28–30. Accordingly, we
focus our discussion on claim 8, and claims 5, 9, 13, 14, 16, and 17 will
stand or fall with claim 8. The Appellants do not argue the rejections of
claim 6 (dependent from claim 5). Therefore, we consider the arguments
made in support of claim 8 to the extent applicable to the rejections of claim
6. The Appellants traverse the rejection of claims 7, 18, and 19 based on
limitations common to claims 7 and 18. See id. at 30–31.
In rejecting claim 8, the Examiner relied on the teachings of Lee, as
evidenced by DeCrosta, and in view of Law, as discussed above in
connection with the rejection of claim 1. Compare Final 8–9, with id. at 4–5.
The Examiner found this combination of references does not teach “treating
the film of SiO2 on the substrate in situ with a plasma of only H2 at a process
temperature of 200° C or less” as required by claim 8. Final 9. The Examiner
found one of ordinary skill in the art would have treated the film of SiO2
formed in the method of Lee, as modified by Law, with a hydrogen plasma
based on Owada’s teaching that such treatment “improve[s] adhesion
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between layers as well as cure[s] underlying dielectric layers without
reducing thicknesses.” Id. at 9–10 (citing Owada ¶¶ 9, 42, 44). The
Examiner found one of ordinary skill in the art would have performed the
hydrogen plasma treatment of the SiO2 film at a “temperature of 200° C or
less” as recited in claim 8 based on Berry III’s teaching that a temperature
range of about 80–280° C—a range overlapping the claimed range—is
suitable for curing a dielectric layer and can improve film quality such as
elastic modulus and chemical stability and dimensional stability of the
dielectric layer. Id. at 10 (citing Berry III ¶¶ 14, 56–58, 67).
The Appellants argue the Examiner reversibly erred in finding one of
ordinary skill in the art would have applied Owada’s hydrogen plasma
treatment of a spin-on coated, organic, low-k insulating film, to Lee’s SiO2
layer, formed by PECVD. Appeal Br. 29. The Appellants argue, more
specifically, that Owada’s hydrogen plasma treatment affects the spin-on
coated, organic, low-k insulating film, but does not affect the SiO2 barrier
cap layer applied over this film. Id.
The Appellants’ argument is not persuasive because it fails to identify
error in the facts and reasons relied on by the Examiner in applying the
teachings of Owada to Lee, as modified by Law. As explained by the
Examiner, claim 8 recites treating the film of SiO2 with a plasma of only H2,
but does not require that the treatment modify the SiO2 film. Ans. 17–18.
The Examiner found that, like Owada, Lee, as evidenced by DeCrosta,
discloses “an insulating layer having a low dielectric constant” and an SiO2
layer. Final 8–9; see Lee 2:46–50, 7:40–45. The Examiner found one of
ordinary skill in the art would have “perform[ed] a hydrogen plasma
[treatment] of the silicon oxide cap layer and underlying dielectric layer, so
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as to improve adhesion between layers as well as cure underlying dielectric
layers without reducing thicknesses.” Final 9–10; see Ans. 17 (citing Lee
3:5–20 for a teaching that a hydrogen containing source gas can be used to
improve film stability and densification); Lee 3:7–10, 17–20 (“A further
embodiment of the method of the present invention treats an FSG or similar
halogen-doped silicon oxide layer with a plasma post-treatment step to
improve film stability. . . . In still another version of this embodiment, a
plasma from a hydrogen containing source gas is used to bombard an FSG
film with hydrogen ions.”). The Appellants have not explained why the
Examiner’s finding of using an H2 plasma to treat Lee’s underlying low-k
dielectric layer, based on Owada’s teachings of improvements to a low-k
dielectric layer achieved by such treatment, is erroneous or unreasonable.
See Appeal Br. 28–29.
The Appellants argue Owada’s plasma treatment is performed at a
temperature of 400 °C, and the Examiner has not explained why one of
ordinary skill in the art instead would have used the lower temperatures of
Berry III, because Berry III treats a different type of film using a plasma of
oxygen, CF, and H2/N2 mixture. Appeal Br. 30.
The Appellants’ argument is not persuasive. We agree with the
Examiner that one of ordinary skill in the art would have understood
Owada’s teaching of treatment at 400 °C as merely exemplary. Ans. 18; see
Owada ¶ 37 (“For example, a treating object after the formation of the
barrier film is heated as it is to about 400° C. . . .” (emphasis added)). Berry
III, like Lee and Owada, utilizes a plasma treatment of a low-k dielectric
film. See Berry III ¶ 56. Berry III discloses that a plasma curing process
conducted in a temperature range that overlaps the claimed range improves
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chemical and dimensional stability. See id. ¶¶ 61, 67. Given these teachings,
we determine the Examiner had a reasonable basis for finding the ordinary
artisan would have used temperatures in the claimed range in the method of
Lee, as modified by Law and Owada, to provide the improvements described
by Berry III to Lee’s low-k delectric film. The Appellants have not provided
persuasive argument or evidence to refute the Examiner’s position. See, e.g.,
Reply Br. 11–12.
As to claims 7 and 18, the Appellants argue that Berry III teaches
curing to reduce the amount of Si-H bonds remaining in the coating, whereas
claims 7 and 18 recite a method “wherein the H2 plasma treatment forms or
reforms Si-H bonds on a surface of the film” (Appeal Br. 33–34, 36 (Claims
Appendix)). Appeal Br. 30–31. The Appellants’ argument is not persuasive
because it fails to address the Examiner’s finding that Maeda teaches
forming a silicon oxide film using TEOS and performing a hydrogen plasma
treatment on the silicon oxide film so that the Si-H bond is substituted for a
dangling bond of Si in an Si-O bond in the surface of the void, so the void
can be made stable. See Final 15 (citing Maeda 3:37–43); Ans. 18.

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ORDER

Claims
Rejected
Basis Reference(s) Affirmed Reversed Comment
8, 9, 17–
19
§ 112,
written
description
8, 9, 17–
19
New
Ground
1, 3, 4 § 103(a) Lee,
DeCrosta,
Law
1, 3, 4
1, 3, 4 § 103(a) Lee,
DeCrosta,
Law, Sutcu
Not
reached
5, 8, 9,
13, 14,
16, 17
§ 103(a) Lee,
DeCrosta,
Law, Owada,
Berry III
5, 8, 9,
13, 14,
16, 17

6 § 103(a) Lee,
DeCrosta,
Owada, Law,
Berry III,
Wagner
6
6 § 103(a) Lee,
DeCrosta,
Law, Owada,
Berry III,
Kumar
6
7, 18, 19 § 103(a) Lee,
DeCrosta,
Law, Owada,
Berry III,
Maeda
7, 18, 19
Outcome 1, 3–9,
13, 14,
and 16–
19

Appeal 2018-009169
Application 12/972,602

18
Because we recognize our Decision relies on facts and reasons not
expressly stated by the Examiner, we denominate the affirmed rejection of
claims 8, 9, and 17–19 under 35 U.S.C. § 112(a) or 35 U.S.C. § 112 (pre-
AIA), first paragraph, as failing to comply with the written description
requirement as a NEW GROUND OF REJECTION pursuant to 37 C.F.R.
§ 41.50(b).
37 C.F.R. § 41.50(b) provides that an appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new
Evidence relating to the claims so rejected, or both,
and have the matter reconsidered by the examiner,
in which event the proceeding will be remanded to
the examiner. . . .
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board
upon the same Record.

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
37 C.F.R. § 41.50(b)