Ex Parte Aspar et al

Patent Trial and Appeal Board

Mar 20, 2014

10534199 (P.T.A.B. Mar. 20, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/534,199 10/16/2006 Bernard Aspar 9905-25 (BIF023239/US) 1400
90678 7590 03/21/2014
BGL/Commissariat a I''''Energie Atomique
P.O. Box 10395
Chicago, IL 60610
EXAMINER
SMITH, BRADLEY
ART UNIT PAPER NUMBER
2894
MAIL DATE DELIVERY MODE
03/21/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

____________

Ex parte BERNARD ASPAR, CHRISTELLE LAGAHE,
NICOLAS SOUSBIE, and JEAN-FRANCOIS MICHAUD
____________

Appeal 2011-011587
Application 10/534,199
Technology Center 2800
____________

Before JEFFREY T. SMITH, JAMES C. HOUSEL and
DONNA M. PRAISS, Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL

Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1-23 under 35 U.S.C. § 103(a). We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.2

1 Appellants identify the real party in interest in this appeal as Commissariat
A L’Energie Atomique Et Aux Energies Alternatives.
2 Our decision refers to Appellants’ Brief (App. Br.) filed December 27,
2010, the Examiner’s Answer (Ans.) mailed on March 3, 2011, and the
Appellants’ Reply Brief (Rep. Br.) filed on May 2, 2011.
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STATEMENT OF THE CASE
The invention relates to a method of fabricating a thin layer3 at the
surface of a source substrate (Spec. 1:4-5). Appellants disclose the method
includes steps of implanting a first chemical species, e.g. hydrogen ions, and
second chemical species, e.g. helium, to different depths at different
concentrations (id. at 6:1-25). Appellants further disclose that the first
chemical species is effective at forming a weakened region in the substrate
and localizing the fracture that enables transfer of the thin layer, while the
second chemical species, after implantation, migrates to the weakened
region to facilitate propagation of the fracture (id. at 6:26-30).
Claim 1 is representative of the subject matter on appeal:
1. A method of fabricating a thin layer, in which a weak buried
region is created by implanting a chemical species in a substrate in order to
thereafter initiate a fracture of the substrate along the weak region to detach
the thin layer therefrom, the method comprising:
a) implanting a first chemical species in the substrate at a first
depth to form the weak buried region;
b) implanting at least one second chemical species, in the
substrate at a second depth different from the first depth and at an
atomic concentration higher than the atomic concentration of the first
chemical species,
wherein the at least one second chemical species is less
effective than the first chemical species at weakening the substrate
and resides outside of the weak buried region, and
wherein steps a) and b) can be executed in either order;
c) diffusing at least a portion of the at least one second chemical
species from the second depth into the weak buried region, and

3 “By ‘thin layer’ is meant, conventionally, a layer whose thickness is
usually from a few tens of angstrom units to several micrometers.” (Spec.
1:6-7.)
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d) initiating the fracture along the first depth.
App. Br. 20, Claims App’x.

Rejections
The Examiner maintains, and Appellants appeal the following
rejections under 35 U.S.C. § 103(a):
1) Claims 1-3, 5, 8-12, 14-18, and 21-23 stand rejected as
unpatentable over Agarwal4 in view of Venezia.5
2) Claims 4 and 19 stand rejected as unpatentable over Agarwal
and Venezia, further in view of Duo.6
3) Claims 6, 7, 13, and 20 are rejected under 35 U.S.C. § 103(a) as
being obvious over Agarwal in view of Venezia, further in view of Kenji.7
ANALYSIS
For purposes of this appeal, to the extent that the claims on appeal are
separately argued, we will address them separately consistent with 37 C.F.R.
§ 41.37(c)(1)(vii). In particular, Appellants separately argue claims 1-4, 6-9,

4 Agarwal et al., Efficient production of silicon-on-insulator films by co-
implantation of He+ with H+, Appl. Phys. Lett., Vol. 72, No. 9, published
March 2, 1998.
5 Venezia et al., The role of implantation damage in the production of
silicon-on-insulator films by co-implantation of He+ and H+, Proc. of the
Eighth Int’l Symposium on Silicon Materials Science and Technology,1998,
pp. 1385-1394.
6 Duo et al., Comparison between the different implantation order in H+and
He+coimplantation, J. Phys. D: Appl. Phys., 34 (2001), pp. 477-482.
7 JP 11087668, published March 30, 1999. We note the Examiner refers to
this reference as “Mitsubishi”, whereas Appellants refer to it as “Kinji.”
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11-13, and 19-23. Claims 5, 10, and 14-18 stand or fall with independent
claim 1 from which they depend.
Appellants do not challenge the prior art status of the applied
references.
After careful consideration of the respective positions of the Examiner
and Appellants, we find a preponderance of the evidence supports the
Examiner’s obviousness conclusion. Accordingly, we will sustain each of
the Examiner’s Section 103(a) rejections for the reasons expressed in the
Answer with the comments below added for emphasis.
Claims 1-3, 5, 10-12, and 14-18, regarding claim 1 as representative
The Examiner finds that Agarwal discloses a method of a) implanting
a first chemical species in the substrate at a first depth (hydrogen (“H”)
implanted at 30 keV) defining a weak buried region and b) implanting at
least one second chemical species in the substrate at a second depth different
from said first depth (helium (“He”) implanted at 33keV) and at an atomic
concentration higher than the atomic concentration of the first chemical
species (1 × 1016 cm-2 He+ vs. 7.5 × 1015 cm-2 H+), and that steps a) and b)
can be executed in either order (Ans. 4, referring to Agarwal, p. 1086-1087).
The Examiner further finds the second chemical species, He, is less effective
than said first chemical species, H, at weakening the substrate (id.). The
Examiner finds that Agarwal discloses c) diffusing at least a portion of the
second chemical species from said second depth into the weak buried region
and d) initiating said fracture along said first depth (id., referring to
Agarwal, p. 1087). However, the Examiner finds Agarwal fails to explicitly
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disclose the implantation of the second chemical species at a depth that
resides outside of the weak buried region (id.).
Nonetheless, the Examiner finds Venezia teaches implanting 30
(thirty) keV H and 130 (one hundred thirty) keV He, thereby teaching to
implant the second chemical species “outside of the weak buried region”
(Ans. 5, referring to Venezia, p. 1387). The Examiner concludes that a
person would have been motivated to combine the teachings of the
references to thereby implant He to a depth outside of the weakened region
at least because Venezia teaches doing so separates the damage of the H and
He implantation steps (id.).
Appellants contend that, contrary to the Examiner’s finding above,
Venezia teaches “it is preferable to implant hydrogen and helium to the same
depth in the substrate” (App. Br. 9). Appellants assert Venezia concludes
that separating the implant profiles [to different depths] had no significant
effect on the surface blistering (id. at 8, referring to Venezia, p. 1388).
Appellants argue Venezia teaches that blistering is more efficient when H
and He are implanted in the same region (id. at 17; see also Reply Br. 3-4)
and, therefore, that “implantation at different depths is useless and thus not
recommended” (App. Br. at 8). Appellants thus argue Venezia teaches to
implant He and H at the same depth (id. at 8, 9, 11, 16, and 17; see also
Reply Br. 4-5), and “teaches away from implanting hydrogen and helium at
different depths in the substrate” (id. at 17).
Appellants’ argument is not persuasive. A prima facie case of
obviousness will be rebutted if it can be shown that the prior art taught away
from the claimed invention. In re Geisler, 116 F.3d 1465, 1471 (Fed. Cir.
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1997). “A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994), cited favorably in In re Kubin, 561 F.3d 1351, 1357 (Fed.
Cir. 2009). On the other hand, a reference is prior art not only as to its
working examples and preferred embodiments, but to the entirety of its
teachings. In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992) (“It is well
settled that a prior art reference is relevant for all that it teaches to those of
ordinary skill in the art.”).
Appellants admit Venezia teaches implantation of H and He to
different depths, and that through annealing, the He diffuses to the hydrogen
implant region. See id., (“Venezia et al. note that the He distribution was
very broad and located deeper than the H profile. (Venezia et al., Pg. 1388,
leading paragraph).”) Further, as the Examiner notes, Venezia does not
teach blistering is more efficient when both chemical species are implanted
to the same depth (Ans. 9). Indeed, Venezia teaches the same blistering may
be achieved by implanting both species to the same depth, as well as by
implanting He to a greater depth, followed by annealing to diffuse the He to
the depth of the implanted H. See Venezia, p. 1388, comparing Figs. Ia and
Ib (“the blistering remained essentially unchanged as a result of placing the
He damage deeper than the H damage.”). Venezia’s teaching regarding
enhanced efficiency of blistering refers to the presence of He in the
implanted H region, applicable to both processes (id.; see also Reply Br. 5).
Venezia teaches that both processes are acceptable to achieve the desired
outcome. As such, Appellants have not shown that Venezia recommends
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against, much less teaches away from, implantation of He to a depth deeper
than H.
Appellants further argue the Examiner has failed to establish why one
skilled in the art would be motivated to combine the teachings of Venezia
with Agarwal in view of the alleged “teaching away” of Venezia and
Examiner has employed impermissible hindsight to find the invention
obvious. App. Br. 18. These arguments are unpersuasive. We recognize
that the Examiner has the initial duty of supplying the requisite factual basis
and may not, because of doubts that the invention is patentable, resort to
speculation, unfounded assumptions or hindsight reconstruction to supply
deficiencies in the factual basis. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (“To facilitate review, [the obviousness] analysis should be
made explicit.”); see also, In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.”), quoted with approval in KSR, 550 U.S. at 418.
Here, the Examiner provided the requisite articulated reasoning with
sufficient rational underpinning to support the legal conclusion of
obviousness. Appellants have not identified error in any of the Examiner’s
findings regarding Agarwal and Venezia. It is enough that the prior art,
Venezia, teaches both the claimed process of implanting to different depths
followed by annealing induced He diffusion and Agarwal’s process of
implanting to the same depth work equally well. Further, we note
Appellants neither argue nor show that the claimed process (shown by
Venezia) yields significant, unexpected results over that of Agarwal’s
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process. Therefore, we agree with the Examiner that one of ordinary skill in
the art would have found it obvious to implant the He in Agarwal to a deeper
depth that H in view of Venezia’s teaching.
Claims 2 and 3
Claim 2 depends from claim 1 and further requires the implantation
depth of the second chemical species be greater than that of the first
chemical species. Claim 3 depends from claim 1 and further requires the
implantation depth of the second chemical species be less than that of the
first chemical species. Appellants argue these two claims together, asserting
that Venezia discourages implanting at different depths (App. Br. 11). We
note this argument does not differ substantively from that for claim 1 above.
Further, the Examiner points to Agarwal for teaching that 30 keV H
implantation is deeper than 33 keV He implantation in silicon (Ans. 4-5).
The Examiner also finds Venezia teaches 30 keV H and 130 keV He
implantation, resulting in a deeper He implantation. As such, the Examiner
finds Agarwal teaches claim 3 (second depth for He is less than the first
depth for H), while Venezia teaches claim 2 (second depth for He is greater
than the first depth for H). Appellants offer no rebuttal to these findings.
Accordingly, for the reasons set forth in the Answer and above, this
argument is not persuasive.
Claims 11-12
Claim 11 depends from claim 1 and further requires initiating the
fracture includes applying mechanical stress. Claim 12 depends from claim
11 and further limits the mechanical stress to that provided by one or more
of a jet of fluid, a blade, traction, shear or bending stress, and acoustic
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waves. Appellants assert Agarwal does not disclose a fracture process, but
instead Agarwal’s description of a shear process is in reference to a prior art
process of Bruel. (App. Br. 11).
On the contrary, the Examiner finds Agarwal discloses a shear stress
is applied to the wafer to separate the thin silicon layer (Ans. 5). We agree.
Agarwal teaches “demonstrat[ion] that a 1 X 1016 cm-2 He dose in
combination with a 7.5x 1015 cm-2 H dose are sufficient to shear and transfer
a thin silicon film onto a handle wafer” (Agarwal, Abstract, last three lines).
Appellants’ assertion, therefore, is contrary to the express teaching of
Agarwal. Accordingly, Appellants have not identified error in the
Examiner’s rejection of claims 11 and 12 over the combination of Agarwal
and Venezia.
Claims 4 and 19
Claim 4 depends from claim 2 and requires implanting the second
chemical species before implanting the first chemical species. Claim 19
depends from claim 3 and similarly requires implanting the second chemical
species before implanting the first chemical species. The Examiner
acknowledges Agarwal and Venezia fail to disclose implanting the second
chemical species before the first chemical species (Ans. 6). However, the
Examiner finds Duo discloses “the synergistic effect of hydrogen and helium
implantation is observed when combined in different orders” (id., referring
to Duo, p. 482, col. 2). The Examiner concludes one of ordinary skill in the
art would have found the claimed order of implantation to have been
obvious because this synergistic effect exists regardless of the order of
implantation as taught by Duo.
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Appellants argue because Duo teaches exfoliation of the surface
implanted with He first is not as efficient as when H is implanted first, Duo
teaches the opposite implantation order compared to claim 4 (App. Br. 12
referring to Duo, p. 482, col. 2). Appellants further assert, regardless of
Duo’s discussion of the synergistic effect of H and He implantation, Duo
fails to suggest the particular order recited in Appellants’ claims (id.).
Appellants urge that “none of these references even recognize a significant
difference in encouraging the growth of microcavities, without at the same
time increasing the size of this distributed region at the level of the main
peak” (id., referring to the Specification, 7:17-24).
A known or obvious method does not become patentable simply
because it has been described as somewhat inferior to another method for the
same purpose. In re Gurley, 27 F.3d at 553. Duo teaches that “[b]oth
implantation orders lead to exfoliation of the surface of the samples after
annealing at 450ºC” (Duo, p. 481, col. 1). Although Duo does indicate
helium first implantation is not as efficient for exfoliation as hydrogen first,
Duo nonetheless teaches the synergistic effect of co-implantation of helium
and hydrogen exists in either order of implantation (Duo, p. 482, col. 2).
Therefore, we have no difficulty concluding, as did the Examiner, that one
skilled in the art would have found it obvious to have implanted hydrogen
and helium in the order recited in Appellants’ claims as Duo suggests.

Claims 6, 7, 13, and 20
Claim 6 depends from claim 1 and further requires applying a heat
treatment. Claim 7 depends from claim 5 and further requires the steps of
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diffusing the second chemical species into the weakened buried region and
initiating the fracture are performed simultaneously. Claim 13 depends from
claim 1 and further requires applying a thickener to the substrate. Claim 20
depends from claim 6 and, like claim 7, further requires the steps of
diffusing the second chemical species into the weakened buried region and
initiating the fracture are performed simultaneously.
The Examiner combines Kenji with Agarwal and Venezia to show
that these features are known in the prior art.8 Appellants’ sole argument
relative to each claim is that Kenji does not remedy the alleged deficiencies
of Agarwal in view of Venezia, i.e., Kenji does not disclose or suggest the
implantation and diffusion steps of claim 1. Appellants’ argument is not
persuasive. We have already determined the Examiner’s proposed
combination of Agarwal and Venezia is not deficient with regard to
implantation and diffusion steps of claim 1, and the Examiner does not rely
on Kenji for teaching such. Moreover, Appellants do not address the
Examiner’s findings regarding Kenji, nor the Examiner’s obviousness
conclusion based thereon.
Claims 8-9 and 21-23
Claim 8 depends from claim 5 and further requires performing the
heat treatment within a first thermal budget which is lower than a second
thermal budget that would be necessary to initiate fracture in the absence of
the second implantation and diffusion. Claim 9 depends from claim 5 and

8 Although not a factor in our decision, the Examiner may have judged
Agarwal and Venezia unfairly. Agarwal, p. 1086, teaches a heat treatment
to anneal, and to initiate fracture formation. It seems the only claimed
element missing is applying a thickener, which is taught by Mitsubishi.
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further requires performing the heat treatment within a first thermal budget
by implanting an additional amount of the second chemical species which is
lower than a second thermal budget that would be necessary in the absence
of the additional amount of the second chemical species. Claim 21 differs
from claim 8 in its dependence from claim 6, and claim 22 differs from
claim 8 in its dependence from claim 7. Independent claim 23 is similar to
claim 1, with the additional feature that the heat treatment is applied for less
time and at lower temperature than that necessary without He implantation
or an additional amount of He is implanted.
Appellants argue that neither Agarwal nor Venezia disclose the
claimed “thermal budget”. We disagree. The Examiner finds Agarwal
discloses the claimed thermal budget wherein all of the helium meets the
additional amount requirement (Ans. 5, referring to Agarwal, p. 1086,
(“annealing for 20 min at 450 deg C or 20 sec at 750 deg C”). Appellants’
claims require a first thermal budget based on the claimed method steps. As
set forth in the Answer and above, the claimed method steps are known and
the claimed method would have been obvious over the combination of the
applied references. Further, we note Agarwal teaches blistering is not only
dependent on He implantation, but in the absence of He, the concentration of
H+ implantation. See Agarwal, Figs. 1 and 2. Appellants do not address the
Examiner’s finding with any particularity and do not show that the
Examiner’s finding regarding the thermal budget of Agarwal does not meet
the requirement that it is lower than would be required without He
implantation.
Conclusion
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Accordingly, based on our consideration of the totality of the record
before us, we have weighed the Examiner’s findings and evidence of
obviousness found in Agarwal, Venezia, Duo, and Kenji with Appellants’
countervailing arguments for nonobviousness and conclude, by a
preponderance of the evidence and weight of argument, that the claimed
invention encompassed by appealed claims 1-23 would have been obvious
as a matter of law under 35 U.S.C. § 103(a).  
ORDER
Upon consideration of the record, and for the reasons given above and
in the Answer, it is
ORDERED that the decision of the Examiner rejecting the claims on
appeal under 35 U.S.C. § 103(a) is affirmed; and
FURTHER ORDERED that 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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