Ex Parte Cohen

Patent Trial and Appeal Board

Dec 22, 2017

12471557 (P.T.A.B. Dec. 22, 2017)

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.
12/471,557 05/26/2009 Uri Cohen SEED011USD1 6098
147213 7590
Caldwell Cassady Curry P.C.
2101 Cedar Springs Road
Suite 1000
Dallas, TX 75201
EXAMINER
SMITH, BRADLEY
ART UNIT PAPER NUMBER
2817
MAIL DATE DELIVERY MODE
12/22/2017 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 URI COHEN
Appeal 2015-000667
Application 12/471,5571
Technology Center 2800
Before TERRY J. OWENS, BEVERLY A. FRANKLIN, and
CHRISTOPHER M. KAISER, Administrative Patent Judges.
KAISER, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Pursuant to 37 C.F.R. § 41.52, Appellant submitted a timely request
for rehearing, dated December 18, 2017 (“Request”), requesting rehearing
and modification of the original Decision in this Appeal, dated October 18,
2017 (“Dec.”), in which we affirmed the Examiner’s rejection of claims 1—4,
6, 7, 10, 17, and 31—37.2
1 Appellant identifies the real party-in-interest as Uri Cohen, the named
inventor. Appeal Br. 1.
2 We affirmed the Examiner’s rejections (1) under 35 U.S.C. § 103(a) of
claims 1—3, 6, 7, 10, and 31—37 as obvious over the combination of Brown,
Shacham-Diamand, and applicant-admitted prior art; (2) under 35 U.S.C.
§ 103(a) of claim 4 as obvious over the combination of Brown, Shacham-
Diamand, Liu, and applicant-admitted prior art; and (3) under 35 U.S.C.
§ 103(a) of claim 17 as obvious over the combination of Brown, Shacham-
Diamand, Hoinkis, and applicant-admitted prior art. Dec. 18. We also
Appeal 2015-000667
Application 12/471,557
OPINION
Appellant’s invention “pertains to the field of electroplating metals or
alloys for filling high aspect ratio openings, such as trenches and vias, for
semiconductor metallization interconnects, thin film heads, or
micromachined Microelectromechanical Systems (MEMS) devices.” Spec.
1,11. 11—14. “In particular, embodiments of the present invention provide
improved seed layers for electroplating copper or silver interconnects in
semiconductor devices, and methods and apparatus for fabricating such
improved seed layers.” Id. at 1,11. 14—16.
In the request for rehearing, Appellant raises two arguments that our
original Decision was flawed. Request 1—2. We consider each of these
arguments in turn.
reversed the Examiner’s rejections (1) under 35 U.S.C. § 112 of claims 1—17
and 31—37 as lacking sufficient enablement; (2) under 35 U.S.C. § 103(a) of
claims 8 and 9 as obvious over the combination of Brown, Shacham-
Diamand, and applicant-admitted prior art; (3) under 35 U.S.C. § 103(a) of
claim 5 as obvious over the combination of Brown, Shacham-Diamand, Liu,
and applicant-admitted prior art; (4) under 35 U.S.C. § 103(a) of claims 11,
12, and 15 as obvious over the combination of Brown, Shacham-Diamand,
Gandikota, and applicant-admitted prior art; (5) under 35 U.S.C. § 103(a) of
claims 13 and 16 as obvious over the combination of Brown, Shacham-
Diamand, Hoinkis, and applicant-admitted prior art; and (6) under 35 U.S.C.
§ 103(a) of claim 14 as obvious over the combination of Brown, Shacham-
Diamand, Hoinkis, Gandikota, and applicant-admitted prior art, id. at 17—18,
but Appellant has not asked for rehearing on these points. Our statement
that claim 5 “remain[s] subject to at least one affirmed rejection,” id. at 18,
was in error, as made clear by our discussion of the two rejections of claim
5. Id. at 4—7, 14.
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Application 12/471,557
Construction of “First Seed Layer ”
Each rejected claim recites depositing a “first seed layer.” Appeal Br.,
Claims App’x Al—A2. Claim 1 and its dependent claims require the “first
seed layer” to be “continuous” and deposited “by a CVD technique . . . over
the sidewalls and bottom of... at least one opening.” Id. at Al. Claim 6
and its dependent claims require the “first seed layer” to be “deposited] by a
chemical vapor deposition (CVD) technique” and to be “continuous over the
sidewalls and bottom of... at least one opening.” Id. at A2. Appellant
argues that the broadest reasonable construction of these terms is limited to a
first seed layer that is deposited directly on the underlying substrate or
metallic barrier layer, excluding the possibility of a seed layer having been
applied between the substrate or barrier layer and the “first seed layer.”
Request 2—6.
Appellant raised this argument previously. First, Appellant argued
that “the prior art teaches away from the claims’ limitation of a first
deposited CVD . . . layer.” Appeal Br. 29. As evidence of this teaching
away, Appellant quoted the declaration of Dr. Cheung: “The prior art
teaches away from depositing a first CVD Cu seed layer directly on a
metallic barrier.” Id. (quoting Fifth Cheung Declaration (Sept. 23, 2013)
116(b)). The Examiner responded that “the claims do not require the first
CVD layer to be ‘directly on’ the metallic barrier layer” and, “under the
broadest reasonable interpretation[,] there could be another flash seed layer
between the barrier layer and continuous seed layer.” Ans. 9. In its Reply,
Appellant argued that the “first seed layer” language “means that the CVD
seed layer is the first seed layer deposited directly on the barrier layer. “The
word first excludes any other seed layer being deposited prior to the first
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Application 12/471,557
seed layer.” Reply 20 (emphasis in original). We were not persuaded by
Appellant’s arguments that “first seed layer” should be interpreted so
narrowly. Dec. 9 (finding that “Appellant’s claims ... do not exclude
performing [the] preliminary step” of depositing a PVD layer before the first
CVD layer).
In evaluating Appellant’s argument in its rehearing request, we begin
by noting that “[t]he use of the terms ‘first’ and ‘second’ is a common
patent-law convention to distinguish between repeated instances of an
element or limitation. [It] should not in and of itself impose a serial or
temporal limitation.” 3MInnovative Props. Co. v. Avery Dennison Corp.,
350 F.3d 1365, 1371 (Fed. Cir. 2003) (citing Anchor Wall Sys., Inc. v.
RockwoodRetaining Walls, Inc., 340 F.3d 1298, 1304 (Fed. Cir. 2003);
Springs Window Fashions LP v. Novo Indus., L.P., 323 F.3d 989, 992 (Fed.
Cir. 2003)). Accordingly, to prevail, Appellant must do more than point to
the existence of the word “first” in the rejected claims. Specifically,
Appellant must direct us to language that defines the term “first” or “first
seed layer” as limited to layers deposited directly on an underlying substrate
or barrier layer. This definition must be stated “with reasonable clarity,
deliberateness, and precision” and must “‘set out [the] uncommon definition
in some manner within the patent disclosure’ so as to give one of ordinary
skill in the art notice of the change” in meaning. In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994) (quoting Intellicall, Inc. v. Phonometrics, Inc.,
952 F.2d 1384, 1387-88 (Fed. Cir. 1992)).
Appellant directs us to evidence from the Specification that Appellant
suggests mandates a conclusion that “first seed layer” is limited to a layer
deposited directly on the underlying barrier layer. Request 2—3 (citing Spec.
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Application 12/471,557
8,11. 1—5; id. at 12,11. 3—6; id. at 17,11. 3—7). We do not find this language
persuasive. The first portion of the Specification to which Appellant draws
our attention merely states that “a first, conformal seed layer is deposited
over a barrier layer.” Spec. 8,11. 1—5; see Spec., Fig. 1. The second portion
of the Specification contains identical language. Id. at 12,11. 3—6; see Spec.
Fig. 3. This does not limit “first seed layer” to a layer deposited directly on
a barrier layer “with reasonable clarity, deliberateness, and precision.”
Paulsen, 30 F.3d at 1480. A “first, conformal seed layer is deposited over a
barrier layer” as long as the barrier layer is deposited before the seed layer
is, regardless of the number of intervening layers. Spec. 8,11. 1—5.
Accordingly, this language is just as consistent with the view that “first seed
layer” may be deposited after depositing intervening layers on the barrier
layer as it is with the view that “first seed layer” must be a seed layer
deposited directly on the underlying barrier layer.
A more limited meaning perhaps might be inferred if the Specification
limited the “first, conformal seed layer” to one that “is deposited directly on
a barrier layer” rather than one deposited “over a barrier layer,” but
Appellant does not direct us to language in the Specification to this effect.
Moreover, the Specification states that “the scope of the present invention is
not limited to the embodiments described above,” referring to the two
examples we have discussed. Spec. 15,11. 28—29. In fact, the Specification
states that “a relatively thin (‘Flash’) PVD seed layer can be deposited first,
followed by a conformal CVD or electroless seed layer, and finally followed
by a (relatively thick) PVD seed layer.” Id. at 16,11. 1—3. This is substantial
evidence that the Specification would not be interpreted as excluding the
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deposition of “a relatively thin (‘Flash’) PVD seed layer” between the
barrier layer and the CVD “first seed layer.” Id.
For the same reasons, we also are not persuaded by Appellant’s
argument that the description of an initial “Flash” PVD seed layer as “a first,
relatively thin, ‘Flash’ PVD seed layer’’ proves that the term “first” applied
to a layer must be interpreted as limiting that layer to one deposited directly
on the underlying barrier layer. Request 2—3 (citing Spec. 17,11. 3—7).
Similarly, we are not persuaded by Appellant’s argument that the
prior art applies Appellant’s definition of “first seed layer.” Request 3
(citing Brown,3 col. 6,11. 10—21). Brown states that “the thin, first seed layer
224 is deposited on and lines the barrier layer 123.” Brown, col. 6,11. 10-
11. To the extent that this language describes a seed layer that is deposited
directly on a barrier layer, we are reluctant to ascribe that meaning to the use
of the phrase “first. . . layer” when it could just as easily be due to the
phrase “deposited on” (rather than “deposited over”) and the description of
the seed layer as “lin[ing] the barrier layer.” Id.
Finally, we find unpersuasive Appellant’s argument that the Examiner
applied Appellant’s proposed construction of “first seed layer” in rejecting
the claims for lack of enablement. Request 3—5. As discussed in our
original Decision, we have reversed the Examiner’s enablement rejection of
claims 1—17 and 31—37, and Appellant does not challenge that reversal.
Dec. 4—7. Accordingly, we are not bound by any findings or conclusions of
the Examiner with respect to the enablement rejection. Thus, we are not
persuaded that the construction of “first seed layer” we applied in our
3 Brown et al., U.S. Patent No. 6,187,670 Bl, issued Feb. 13,2001,
(hereinafter “Brown”).
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Decision was erroneous. Accordingly, we do not address Appellant’s
arguments, Request 6—13, that, under the “correct” construction, there is
insufficient evidence of obviousness to support the rejections under 35
U.S.C. § 103(a) of claims 1—4, 6, 7, 10, 17, and 31—37.
Thickness Limitations
The rejected claims recite various limitations limiting the thickness of
the first seed layer. Appeal Br., Claims App. Al—A4. These limitations are
summarized below:
Claim(s) First Seed Layer Thickness
1,2,4,31,34,35
s s
“from about 50A to not more than 400A over the
field”
3
o o
“from about 50A to not more than 300A over the
field”
6, 10, 32, 33, 36, 37 No Limitation
7, 17 “the thickness . . . over the field is from about
50A to not more than 350A”
In addition, as discussed above, all claims require the first seed layer to be
continuous over the sidewalls and bottom of an opening. Id. Appellant
argues that, even under the construction we applied, there was insufficient
evidence to show that the prior art taught or suggested a continuous seed
o
layer over the sidewalls of an opening when that layer was less than 500A
thick, as required by claims 1—4, 7, 17, 31, 34, and 35. Request 9-11, 13—
14. As discussed in our original Decision, the Examiner found that
Appellant’s Specification admitted that “continuous CVD layers as thin as
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Application 12/471,557
300 angstroms were common in the prior art” and that “optimization of the
thickness within the range of the prior art was a matter of routine skill in the
art.” Dec. 11. We agreed with those findings; accordingly, we concluded
that it would have been a matter of routine skill to obtain a continuous first
o
seed layer as thin as (but not thinner than) 300A. Id. at 11—12.
Appellant now argues that the admissions in Appellant’s Specification
on which the Examiner relied do not in fact admit that it was common in the
o
art to obtain continuous layers as thin as 300A. Request 9-11, 13—14.
Although Appellant admits that the Specification “does state that CVD
layers between 300 and 800 angstroms were common,” Appellant argues
that “the [Specification never states that the 300—500 angstrom range was
common for CVD ‘first seed layers’ deposited on the barrier.” Id. at 10.
This argument relies on Appellant’s flawed argument that a “first seed layer”
must be deposited directly onto the underlying barrier layer, an argument we
have rejected, as discussed above. Appellant argues that, even under our
claim construction, this argument still applies, but Appellant does not
explain why that is the case. Id. at 13—14.
Next, in agreeing with the Examiner that the Specification teaches that
thin but continuous CVD seed layers were common, we relied on two
statements in the Specification. First, the Specification states that layers “of
about 300A to about 1,000A (on the field), deposited by the CVD
techniques” are “typical.” Spec. 5,11. 25—26. Second, the Specification
describes “CVD or electroless techniques” as “conformal” and as “providing
continuous and complete step coverage of the seed layer inside very narrow
openings.” Id. at 6,11. 2-4. Appellant now argues that the second statement
is limited to “scenarios when CVD is ‘used at thicknesses required on the
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Application 12/471,557
field for a low-resistance electrical path’” and that the Specification also
o o
states that seed layers between 3 00A and 800A “may not be sufficiently
thick on the field for a low-resistance electrical path.” Request 10 (emphasis
omitted) (quoting Spec. 6,11. 2—5; Spec. 5,11. 24—26).4
We do not find this argument persuasive. Appellant is correct that the
o
Specification states that “the typical thickness of about 300A to about
o
1,000A (on the field), deposited by CVD techniques, may not be sufficient.”
Spec. 5,11. 25—26. The preceding sentence of the Specification suggests that
the insufficiency being referred to is a lack of a “sufficiently low-resistance”
electrical path. Id. at 5,11. 23—24. But we do not agree with Appellant that
the Specification limits the description of “CVD or electroless techniques”
as “providing continuous and complete step coverage of the seed layer inside
very narrow openings” to those CVD techniques used to provide a low-
resistance electrical path. The statement in question is this: “The conformal
CVD or electroless techniques, on the other hand, while providing
continuous and complete step coverage of the seed layer inside very narrow
openings, pinch-off the small openings when used at thicknesses required on
the field for a low-resistance electrical path.” Spec. 6,11. 2—5. This
statement makes two points. The primary point is that, when CVD or
electroless techniques are “used at thicknesses required on the field for a
low-resistance electrical path,” those techniques cause small openings to be
pinched off. Id. The other point is that CVD techniques “provid[e]
continuous and complete step coverage of the seed layer inside very narrow
openings.” Id. We do not read the entire sentence as making the point that
4 Appellant mis-cites the two portions of the Specification to which it
directs us, using page 7 in both cases instead of page 6 and page 5.
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CVD techniques provide continuous coverage inside narrow openings only
when they provide a layer sufficiently thick to provide a low-resistance
electrical path. Accordingly, we are not persuaded that we abused our
discretion by finding that Appellant’s Specification teaches that CVD layers
o
as thin as 300A providing continuous sidewall coverage were known in the
prior art.
Finally, Appellant argues that any combination of teachings leading to
a first seed layer thickness of less than 375 angstroms “would be a non-
enabled combination” that could not render those claims obvious. Request
14. We note first, as Appellant does, that this argument affects only claims
4, 7, and 17, because all other rejected claims permit first seed layers thicker
than 375 angstroms. Id. n.8; Appeal Br., Claims App. Al—A4. In addition,
the evidence supporting Appellant’s argument is contradicted by Appellant’s
own Specification. Second Cheung Declaration (filed July 18, 2011)111;
Spec. 5,11. 25—26; Spec. 6,11. 2-4. As discussed above, the Specification
o
teaches that CVD layers as thin as 300A providing continuous sidewall
coverage were known in the prior art. Spec. 5,11. 25—26; Spec. 6,11. 2-4.
As such, we are not persuaded that Dr. Cheung tells the entire story when he
testifies that certain prior art references suggest that a thickness of at least
o
375A is required. Second Cheung Declaration 111. Accordingly, we are
not persuaded that we abused our discretion in concluding that the
o
limitations of the rejected claims requiring first seed layers as thin as 300A
that provide continuous sidewall coverage were known to persons of
ordinary skill in the art.
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Application 12/471,557
DECISION/ORDER
For the reasons discussed above, we decline to modify our Decision
affirming the Examiner’s rejection of claims 1—4, 6, 7, 10, 17, and 31—37.
Accordingly, Appellants’ Request is denied. The disposition of the
rejections on appeal is as follows:
The Examiner’s rejection of claims 1—17 and 31—37 under 35 U.S.C.
§ 112 as lacking sufficient enablement is reversed. The Examiner’s
rejections of the following claims under 35 U.S.C. § 103(a) also are
reversed: (1) claims 8 and 9 as obvious over the combination of Brown,
Shacham-Diamand, and applicant-admitted prior art; (2) claim 5 as obvious
over the combination of Brown, Shacham-Diamand, Liu, and applicant-
admitted prior art; (3) claims 11, 12, and 15 as obvious over the combination
of Brown, Shacham-Diamand, Gandikota, and applicant-admitted prior art;
(4) claims 13 and 16 as obvious over the combination of Brown, Shacham-
Diamand, Hoinkis, and applicant-admitted prior art; and (5) claim 14 as
obvious over the combination of Brown, Shacham-Diamand, Hoinkis,
Gandikota, and applicant-admitted prior art.
The Examiner’s rejections of the following claims under 35 U.S.C.
§ 103(a) are affirmed: (1) claims 1—3, 6, 7, 10, and 31—37 as obvious over
the combination of Brown, Shacham-Diamand, and applicant-admitted prior
art; (2) claim 4 as obvious over the combination of Brown, Shacham-
Diamand, Liu, and applicant-admitted prior art; and (3) claim 17 as obvious
over the combination of Brown, Shacham-Diamand, Hoinkis, and applicant-
admitted prior art.
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Thus, claims 5, 8, 9, and 11—16 are not the subjects of any affirmed
rejection. Claims 1—4, 6, 7, 10, 17, and 31—37 remain subject to at least one
affirmed rejection.
This Decision on the Request for Rehearing incorporates our original
Decision, mailed October 18, 2017, and is final for the purposes of judicial
review. See 37 C.F.R. § 41.52(a)(1).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
DENIED
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