Steven Coe et al.

Patent Trials and Appeals Board

Jul 17, 2020

13994903 - (D) (P.T.A.B. Jul. 17, 2020)

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.
13/994,903 10/29/2013 Steven Edward Coe 058116-0945553 3110
23370 7590 07/17/2020
KILPATRICK TOWNSEND & STOCKTON LLP
MAILSTOP: IP DOCKETING - 22
1100 PEACHTREE STREET
SUITE 2800
ATLANTA, GA 30309
EXAMINER
DHINGRA, RAKESH KUMAR
ART UNIT PAPER NUMBER
1716
NOTIFICATION DATE DELIVERY MODE
07/17/2020 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN EDWARD COE, JONATHAN JAMES WILMAN,
DANIEL JAMES TWITCHEN, GEOFFREY ALAN SCARSBROOK,
JOHN ROBERT BRANDON, and
CHRISTOPHER JOHN HOWARD WORT
Appeal 2020-001734
Application 13/994,903
Technology Center 1700
Before CATHERINE Q. TIMM, CHRISTOPHER C. KENNEDY, and
JANE E. INGLESE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–10, 17–20, and 27. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Element
Six Limited, a De Beers Group Company. Appeal Br. 2.
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Application 13/994,903

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CLAIMED SUBJECT MATTER
The claims are directed to a synthetic diamond material
manufacturing microwave plasma reactor. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A synthetic diamond material manufacturing
microwave plasma reactor comprising:
a plasma chamber;
a substrate holder disposed in the plasma chamber for
supporting a substrate on which the synthetic diamond material
is to be deposited in use;
a microwave coupling configuration for feeding
microwaves from a microwave generator into the plasma
chamber; and
a gas flow system for feeding synthetic diamond-forming
process gases into the plasma chamber and removing them
therefrom;
wherein the gas flow system comprises a gas inlet nozzle
array comprising a plurality of gas inlet nozzles disposed
opposite the substrate holder for directing process gases
towards the substrate holder, the gas inlet nozzle array
comprising:
at least six gas inlet nozzles disposed in a
substantially parallel orientation relative to a central axis
of the plasma chamber;
a gas inlet nozzle number density equal to or
greater than 0.1 nozzles/cm2, wherein the gas inlet nozzle
number density is measured by projecting the nozzles
onto a plane whose normal lies parallel to the central axis
of the plasma chamber and measuring the gas inlet
number density on said plane; and
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a nozzle area ratio of equal to or greater than 10,
wherein the nozzle area ratio is measured by projecting
the nozzles onto a plane whose normal lies parallel to the
central axis of the plasma chamber, measuring the total
area of the gas inlet nozzle array on said plane, dividing
by the total number of nozzles to give an area associated
with each nozzle, and dividing the area associated with
each nozzle by an actual area of each nozzle,
wherein the gas inlet nozzle number density and
the nozzle area ratio are calculated over at least 50% of
all the gas inlet nozzles in the gas inlet nozzle array.
Appeal Br. 14 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Karner US 5,616,373 Apr. 1, 1997
David US 6,015,597 Jan. 18, 2000
Ikegawa US 6,427,621 B1 Aug. 6, 2002
Nguyen US 6,565,661 B1 May 20, 2003
Ohmi US 2005/0250338 A1 Nov. 10, 2005
Fukiage US 2007/0128876 A1 June 7, 2007
Sawada WO 2010/004997 A1
(corresponding to US
2011/0174778 A1,
pub. July 21, 2011)
Jan. 14, 2010

REJECTIONS
Claims 1–10, 18, and 27 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Ohmi in view of Karner or David. Final
Act. 3. To reject claim 17, the Examiner adds Fukiage. Final Act. 10. To
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reject claim 19, the Examiner adds Nguyen. Final Act. 11. To reject claim
20, the Examiner adds either Ikegawa or Sawada. Final Act. 12.

OPINION
Appellant’s arguments focus on the rejection of claim 1. Appeal Br.
7–12. Thus, we do the same.
The issue before us is whether Appellant has identified a reversible
error in the Examiner’s conclusion that it would have been obvious to the
ordinary artisan to optimize the density and area ratio of Ohmi’s gas inlets.
Compare Final Act. 4, and Ans. 3–9, with Appeal Br. 7–12, and Reply Br.
1–6.
Appellant has not identified such an error.
There is no dispute that Ohmi’s plasma device includes a plasma
chamber, substrate holder, and microwave coupling configuration as
required by claim 1. Compare Final Act. 3, with Appeal Br. 2–7, and Reply
Br. 1–6. Although Ohmi teaches including a gas flow system with at least
six gas nozzles (shown as gas inlets 117 in Figure 10), Ohmi is silent about
the nozzle density and the gas nozzle area ratio. Ohmi ¶¶ 380–386
(describing embodiment 3). The Examiner determines that it would have
been obvious to one of ordinary skill in the art to optimize the density and
area ratio, relying on the teachings of Karner and David in support. Final
Act. 4. Appellant contends that neither the law nor the facts support the
Examiner’s determination. Appeal Br. 2–7; Reply Br. 1–6. We disagree.
As to the law, under the flexible inquiry set forth by the Supreme
Court, “[t]he obviousness analysis cannot be confined by a formalistic
conception of the words teaching, suggestion, and motivation, or by
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overemphasis on the importance of published articles and the explicit
content of issued patents.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 419,
(2007). Instead, the Examiner must take account of the “inferences and
creative steps,” or even routine steps, that an ordinary artisan would employ.
Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d
984, 993 (Fed. Cir. 2009). This includes routine steps to solve design needs.
KSR, 550 U.S. at 421. For this reason, it has long been held that “where the
general conditions of a claim are disclosed in the prior art, it is not inventive
to discover the optimum or workable ranges by routine experimentation.”
E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996, 1006 (Fed.
Cir. 2018) (quoting In re Aller, 220 F.2d 454, 456 (CCPA 1955) and citing
In re Geisler, 116 F.3d 1465, 1469–70 (Fed. Cir. 1997); In re Woodruff, 919
F.2d 1575, 1578 (Fed. Cir. 1990).).
Ohmi teaches the general conditions required for supplying a gas to a
plasma reactor. Ohmi ¶¶ 379–386; Fig. 10. Ohmi teaches including a
dielectric plate 116 having gas inlets 117 “for supplying desired gas in a
substantially uniform manner.” Ohmi ¶ 380. Plate 116 makes it possible to
supply source material gas uniformly onto surfaces having diameters greater
than 300 mm. Ohmi ¶ 385.
Ohmi provides some guidance on the design of gas inlets 117 within
plate 116. Specifically, Ohmi states that “[w]ith the above described second
dielectric plate 116, gas inlets 117 are arranged so that there are an equal
number per unit surface area, but this arrangement is not limiting and it is
possible to arrange them as conditions demand.” Ohmi ¶ 386. Ohmi’s
guidance indicates that those of ordinary skill in the art understood how to
arrange the inlets to suit the conditions of use. In other words, the
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arrangement of the gas inlets was a known result effective variable.
Optimization of a variable which is recognized in the prior art to be a result
effective variable would ordinarily be within the skill in the art. In re
Boesch, 617 F.2d 272, 276 (CCPA 1980).
Although Ohmi is silent regarding the inlet density and area ratio,
those two parameters are related to the arrangement of the inlets and the gas
flow through the inlets. That the ordinary artisan would have understood the
density and area ratio affect the gas flow and uniformity of gas flow is
evidenced by Karner and David. Karner col. 10, ll. 17–27 (disclosing ranges
for density and diameter of openings 9, which are openings in a showerhead
similar to the inlets of Ohmi); David col. 11, ll. 20–33 (describing
distributing a stream of gas uniformly through a chamber using a perforated
plate 10 (showerhead) with holes of about 750 micrometers in diameter and
2 to 4 holes per square centimeter.). A preponderance of the evidence
supports the Examiner’s routine optimization determination.
Appellant’s reliance on In re Stepan Co., 868 F.3d 1342 (Fed. Cir.
2017) is unavailing. In that case, the court determined there was a failure to
“explain why it would have been ‘routine optimization’ to select and adjust
the claimed surfactants and achieve a cloud point above at least 70°C.” Id. at
1346. The court found that facts relied on by the solicitor were relevant but
had not been relied on by the Board. Id. at 1347. In the present case, we have
no such dearth of facts. To the contrary, the Examiner has provided adequate
evidence to support a finding that the ranges would have been achieved
through routine optimization.
Nor do we agree with Appellant that “[t]here is nothing in Ohmi,
Karner, or David that teaches or suggests the presence of a condition that
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would demand the very specific nozzle density and nozzle area ratio of
claim 1 that is critical to achieving the specific plasma gas flow mentioned
above.” Appeal Br. 9. The references seek a uniform gas flow. The density
and area ratio ranges of Appellant’s claims are broad. The density
encompasses all densities where at least one tenth of an inlet nozzle is within
a square centimeter. David’s density is 2 to 4 nozzles per square centimeter.
The claim requires a nozzle area ratio of 10 or greater. It is undisputed that
David’s area ratio is on the order of 56 to 113. Final Act. 6. It is not that the
ordinary artisan would use the density and area ratio of David, only that
David provides evidence that it is reasonable to presume that the density and
area ratio the ordinary artisan would arrive at when routinely optimizing
Ohmi’s plate inlets 117 would be within the range of claim 1. For this
reason, the specific process conditions of Karner and David are not teaching
away in the manner argued by Appellant. Appeal Br. 9–12.
A preponderance of the evidence supports the Examiner’s finding that
the ordinary artisan would have arrived at inlet nozzle densities and area
ratios within the range of claim 1 when selecting a showerhead plate for use
as plate 116 of Ohmi. It is true that a routine variable change sometimes
causes an unexpected effect. In such a situation, the claimed subject matter
will be unobvious under the law if Appellant presents a showing of
criticality of the range for unexpected beneficial results. See Boesch, 617
F.2d at 276; see also Woodruff, 919 F.2d at 1578, and Aller, 220 F.2d at 456.
Appellant presents no convincing evidence of unexpected results on this
record.
CONCLUSION
The Examiner’s rejections are affirmed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–10, 18, 27 103 Ohmi, Karner,
David
1–10, 18, 27
17 103 Ohmi, Karner,
David, Fukiage
17
19 103 Ohmi, Karner,
David, Nguyen
19
20 103 Ohmi, Karner,
David, Ikegawa,
Sawada
20
Overall
Outcome
1–10, 17–
20, 27

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED