Ex Parte Cohen

Patent Trial and Appeal Board

Sep 23, 2016

12471571 (P.T.A.B. Sep. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/471,571 0512612009 Uri Cohen
7590 09/26/2016
URI COHEN
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.
SEED012USD1 6120
EXAMINER
4147 Dake Avenue SMITH, BRADLEY
Palo Alto, CA 94306
ART UNIT PAPER NUMBER
2817
MAILDATE DELIVERY MODE
09/26/2016 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
Appeal2014-005120
Application 12/471,571 1
Technology Center 2800
Before TERRY J. OWENS, BEVERLY A. FRANKLIN, and
CHRISTOPHER M. KAISER, Administrative Patent Judges.
KAISER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the decision2 of the
Primary Examiner rejecting claims 1-5, 10, 11, 14, 16, and 18-32. Final
Act. 6-15. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm in part.
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 Appellant identifies the real party-in-interest as Uri Cohen, the named
inventor. Appeal Br. 1.
2 Final Office Action, mailed March 19, 2013 ("Final Act.").
Appeal2014-005120
Application 12/471,571
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.
Claim 1, reproduced below, is representative of the appealed subject
matter:
1. A method for depositing two or more PVD seed layers
for electroplating metallic interconnects over a substrate, the
substrate including a patterned insulating layer which comprises
at least one opening surrounded by a field, the at least one
opening having top comers, sidewalls, and bottom, the field and
the at least one opening being ready for depositing one or more
seed layers, and the method comprising:
depositing by a PVD technique, in a PVD chamber, a
continuous PVD seed layer over the sidewalls and bottom of the
at least one opening, using a first set of deposition parameters;
and
depositing by a PVD technique, in a PVD chamber,
another PVD seed layer over the substrate, using a second set of
deposition parameters, wherein:
(i) the second set of deposition parameters includes at least
one deposition parameter whose value is different in the two sets
of deposition parameters, said at least one deposition parameter
is selected from a group of deposition parameters consisting of
substrate bias voltage, duration of deposition, background
pressure, plasma power density, sputtering gas pressure,
sputtering gas flow rate, cathodic voltage, and cathodic power,
(ii) the PVD seed layers have no substantial overhangs
sealing or pinching-off the top comers of the at least one opening,
(iii) at least one of the PVD seed layers comprises a
material selected from a group consisting of Cu, Ag, or alloys
comprising one or more of these metals,
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(iv) the combined thickness of the seed layers over the
field is sufficient to enable uniform electroplating across the
substrate, and
(v) the combined seed layers inside the at least one
opening leave sufficient room for electroplating inside the at
least one opening.
Appeal Br., Claims App'x Al (some paragraphing added for clarity).
The Examiner rejected claims 10, 11, 20, 23, and 29 under the first
paragraph of 35 U.S.C. § 112 for lack of enablement. Final Act. 6-8. In
addition, the Examiner rejected the following claims under 35 U.S.C.
§ 103(a) as obvious over the following combinations of prior art:
Claims
1, 24, and 25
2-5, 11, 18-22, and 26
10, 23, 29, and 30
14
16, 27, 28, 31, and 32
Final Act. 8-15.
Prior-Art References
Brown3 and AAPA4
Brown, AAP A, and Liu 5
Brown, AAP A, Liu, and Hoinkis6
Brown, AAP A, Liu, and Gandikota 7
~ .l .l T"'I>. .l T • TT • 1 • 1 ""'IC T Q tlrown, AAY A, LIU, tt01nK1s, ana r ang~
Appellant, proceeding prose, separately argues each rejection.
Appeal Br. 4--74. Accompanying Appellant's Appeal Brief is an Evidence
Appendix comprising five pieces of evidence totaling 120 pages of
documents. Appeal Br., Evidence App'x. We consider each of the
Examiner's rejections below.
3 Brown et al., U.S. Patent No. 6,187,670 Bl, issued Feb. 13, 2001.
4 Applicant-Admitted Prior Art, Spec. 18, 11. 28-29; Spec. 19, 11. 28-29.
5 Liu et al., U.S. Patent No. 6,037,258, issued Mar. 14, 2000.
6 Hoinkis, U.S. Patent No. 6,146,517, issued Nov. 14, 2000.
7 Gandikota et al., U.S. Patent No. 6,627,542 Bl, issued Sept. 30, 2003.
8 Yang, U.S. Patent No. 6,410,418 Bl, issued June 25, 2002.
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Lack of Enablement: Claims 10, 11, 20, 23, and 29
The first paragraph of 35 U.S.C. § 112 requires that "[t]he
specification ... enable any person skilled in the art to which [the claimed
invention] pertains, or with which it is most nearly connected, to make and
use the [claimed invention]." The Examiner concluded that this requirement
was not met with respect to claims 10, 11, 20, 23, and 29.
Each of claims 10, 11, 20, 23, and 29 requires a "continuous PVD
seed layer over the sidewalls and bottom of [an] opening" and requires that
the seed layer have a thickness of less than 400 angstroms in a field
surrounding that opening. Appeal Br., Claims App'x Al-A3. The
Examiner relied on evidence of record that "the discovery that the thickness
of a PVD seed layer could be reduced below about 400A (on the field),
while still being continuous on the sidewalls, involved more than routine
skill in the art." Final Act. 6 (quoting Second Cheung Declaration (Aug. 8,
2011) i-f 6). i\.ccordingly, the Examiner concluded that, \vithout sufficient
disclosure in the Specification, a person of ordinary skill in the art would not
have known how to make the claimed seed layer, with its sub-400-angstrom
field thickness and continuous sidewalls. Id. at 6-7. The Examiner then
noted that the Specification failed to provide "the specific conditions," such
as "pressure, substrate bias, sputtering gas pressure, sputtering gas flow rate,
cathodic power, and plasma power density" that could produce the claimed
PVD seed layer. Id. Given this lack of disclosure and the "large number
[of] variables," the Examiner determined that making the claimed layer
would require undue experimentation, meaning that the enablement
requirement of 35 U.S.C. § 112 was not met. Id.
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Appellant presents three arguments against this analysis. First,
Appellant argues that it was improper for the Examiner to rely on the Second
Cheung Declaration, because that declaration was provided for purposes of
proving the non-obviousness of the claims, not for proving their enablement.
Appeal Br. 5. To this end, Appellant argues that obviousness must be
proven without using an applicant's own disclosure, while enablement
examines that disclosure to determine whether it is sufficient, making
evidence suitable to one determination irrelevant to the other. Id. We do not
find this argument persuasive. The purpose of the Second Cheung
Declaration is irrelevant; it is evidence for all that it says. And what the
declaration says is that the prior art itself fails to teach the person of ordinary
skill in the art how to make and use the claimed invention. That statement is
highly relevant to the enablement determination, because, without any
teaching in the prior art of how to make and use the invention, any such
disclosure must come from the Specification. The Examiner determined that
the Specification's disclosure of how to make and use the claimed invention
was insufficient.
Second, Appellant argues that a separate declaration of Cheung
provides evidence that proves that the disclosure in the Specification is
sufficient to enable a person of ordinary skill in the art to make and use the
claimed invention. Appeal Br. 6-9 (citing Fourth Cheung Declaration (Dec.
5, 2012) i-f 8). In relevant part, that declaration says that, when combined
with unspecified prior-art knowledge, "the specification of the Cohen
Application provides sufficient guidance and direction to enable a person of
ordinary skill in the art ... to determine suitable PVD variables for
depositing [the claimed PVD seed layer] without undue experimentation."
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Fourth Cheung Declaration (Dec. 5, 2012) i1 s. This is opinion testimony
about an ultimate legal conclusion, namely enablement. Accordingly, it is
entitled to no weight. 9 In re Chilowsky, 306 F.2d 908, 916 (CCPA 1962)
(expert opinions that application met the requirements of 35 U.S.C. § 112
were "incompetent expressions" not entitled to any weight). The facts
underlying the opinion expressed in Cheung are entitled to some weight, id.,
but those facts amount to a statement that "a POSIT A would know how to
operate PVD equipment so as to vary deposition variables," that such a
person "would also know how to determine whether a process carried out in
accordance with claims 10, 11, 20, 23, or 29 resulted in [the claimed seed
layer]," and that such a person would "know that using a low substrate
temperature prevents agglomeration and enhances continuity of the PVD
seed layer." Fourth Cheung Declaration (Dec. 5, 2012) i-f 8. This does not
contradict the Examiner's finding, which was not that a person of ordinary
skill in the art would have known nothing about operating PVD equipment
or about determining whether a given process, once carried out, had
produced a seed layer within the scope of the claims. Instead, the Examiner
determined that, without some disclosure of the values to be given to the
deposition variables, such as "pressure, substrate bias, sputtering gas
pressure, sputtering gas flow rate, cathodic power, and plasma power
9 Even if we were to give weight to the opinion testimony about the ultimate
legal conclusion of enablement, we would have to take into account the fact
that the testimony in question is contradicted by testimony from the same
declarant. Second Cheung Declaration (Aug. 8, 2011) i-f 6 ("the discovery
that the thickness of a PVD seed layer could be reduced below about 400A
(on the field), while still being continuous on the sidewalls, involved more
than routine skill in the art"). Accordingly, if we accorded this testimony
any weight at all, it would be very minimal.
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density," undue experimentation would be required in order to make and use
the claimed invention. Final Act. 6-7. We are not persuaded otherwise by
Appellant's arguments regarding the Fourth Cheung Declaration.
Third, Appellant argues that a non-prior-art article teaching a method
for preparing a seed layer within the scope of the claims proves that a person
of ordinary skill in the art could have made and used the claimed invention
without undue experimentation. Appeal Br. 9-10 (citing Hyunbae Lee et al.,
The Perspective Study of Cu Fill for Memory Devices, in CONFERENCE
PROCEEDINGS AMC XXIV 125-129 (Materials Research Society 2009)).
The Lee article to which Appellant refers was published in 2009, while
Appellant's application is part of a chain of applications dating back to 1999.
We cannot see, nor has Appellant explained, how an article published ten
years after the application in question is at all relevant to the state of the art
at the time of the application. Accordingly, we are not persuaded that the
Lee article demonstrates that a person of ordinary skill in the art, equipped
with Appellant's minimal disclosure, could have made and used the claimed
invention without undue experimentation. We therefore affirm the
Examiner's rejection of claims 10, 11, 20, 23, and 29 for lack of enablement.
Obviousness: Claims 1, 24, and 25
The Examiner rejected claims 1, 24, and 25 as obvious over the
combination of Brown and applicant-admitted prior art. Final Act. 8-9. The
Examiner found that Brown taught or suggested each limitation of these
claims except for the list of "deposition parameter[ s ]" that the claim recites
choosing from to distinguish the first and second PVD seed layers. Id.; see
Appeal Br., Claims App'x Al, A3. Specifically, claim 25 recites the
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different deposition parameter being "substrate bias voltage," Appeal Br.,
Claims App 'x A3, and this parameter is recited as among the genus of
parameters that may be varied in both claims 1 and 24, id. at Al, A3. The
Examiner found that Brown did not teach or suggest varying the substrate
bias voltage. Final Act. 9. The Examiner found that Appellant's
Specification taught that "biasing the substrate voltage [was] a well known
deposition parameter[]." Id. The Examiner also found that a person of
ordinary skill in the art would have been motivated to combine the well-
known change in substrate bias voltage with Brown's deposition process in
order to produce "more conformal" seed layers. Id.
Appellant raises several arguments against the Examiner's
obviousness conclusion. First, Appellant argues that the person of ordinary
skill in the art would have had no reason to combine the teachings of Brown
with the known effect on seed layer conformality of changing substrate bias
voltage, because Brown taught a process that, without any modification,
already produced "good conformality." Appeal Br. 16. As evidence,
Appellant directs us to statements in Brown that assert that Brown's process
produces "improved step coverage and conformality" and that "the
conformality ... will have increased." Id. (quoting Brown, col. 3, 11. 14--16,
col. 4, 11. 64--65 (emphasis removed)). We do not find this argument
persuasive. Brown's statements merely assert that Brown improves on what
was known in the art at the time of Brown, not that no further improvement
on Brown's process is possible. In addition, even if Brown did disclose that
its process was somehow better than the process claimed by Appellant, this
would not necessarily negate the suggestion to combine it with the known
effect of changing the substrate bias voltage. In re Fulton, 391 F.3d 1195,
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1200--01 (Fed. Cir. 2004) (reason to combine need not be supported by prior
art suggestion that applicant's solution is the preferred or most desirable
alternative).
Second, Appellant argues that the Fourth Cheung Declaration proves
that a person of ordinary skill in the art would not have been motivated to
modify Brown's process of improving seed layer conformality via applying
multiple seed layers at different temperatures by instead varying the
substrate bias voltage. Appeal Br. 17 (quoting Fourth Cheung Declaration
(Dec. 5, 2012) i-f 12(b)). Cheung testifies that "a POSITA [would not] know
of any other deposition parameter (except elevated substrate temperature)
that can improve the flow and surface mobility of the seed layer" and that
Appellant's "described prior art does not disclose, suggest, or hint that any
other PVD parameter (and in particular substrate bias) can improve the flow
and surface mobility of the seed layer." Fourth Cheung Declaration (Dec. 5,
2012) i-f 12(b). Both of these observations are irrelevant to the issue at hand,
which is whether a person of ordinary skill in the art would have had a
reason to vary substrate bias voltage instead of temperature in pursuit of
Brown's goal of improving the conformality of the PVD seed layers. Brown
gives one reason that varying a given deposition parameter might improve
conformality: it may cause "the seed material [to have] improved flow and
surface mobility." Brown, col. 3, 11. 1-2. But it is not necessary to show
that a person of ordinary skill in the art would understand the mechanism by
which conformality was improved when varying substrate bias voltage, or
that the mechanism by which conformality was improved when varying
substrate bias voltage was the mechanism disclosed by Brown as improving
conformality when varying temperature. Instead, it is necessary only to
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show that a person of ordinary skill in the art would have known that
varying substrate bias voltage would improve conformality. There is
evidence of record that this was the case. Final Act. 9 (citing Spec. 19, 11.
28-29). As explained in Appellant's Specification, it was "well known to
those of ordinary skill in the art" that "certain deposition techniques ... can
be made more conformal, or less conformal, by varying the deposition
parameters (or ... conditions)," including among those parameters or
conditions the negative bias voltage of the substrate. Spec. 19, 1. 23 -20, 1.
5. Given this disclosure, it is unimportant that, as Cheung declares, a person
of ordinary skill in the art would not have known that changing any
parameter other than temperature would have an effect on the "flow and
surface mobility of the seed layer." Accordingly, this argument does not
persuade us of reversible error by the Examiner.
Third, Appellant argues that modifying Brown's disclosure of varying
temperature so that substrate bias voltage is varied instead "would change
the principle of operation of Brown ... and would render it inoperable for its
intended purpose, because it would eliminate the unique improved flow and
surface mobility of the seed layer material." Appeal Br. 18-19. We do not
find this argument persuasive, because Appellant does not support the
argument with any evidence. Although there is evidence of record as to how
Brown's varying temperatures improve conformality-by improving the
flow and surface mobility of the seed layer material-Appellant does not
direct us to evidence of record explaining how varying substrate bias voltage
accomplishes the same goal. Accordingly, we cannot evaluate the argument
that the process by which varying substrate bias voltage works is so different
from Brown's process that it constitutes a change in Brown's principle of
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Application 12/471,571
operation and renders Brown inoperable for its intended purpose. Moreover,
even if Appellant's bare, unsupported argument were sufficient to allow us
to evaluate the argument, it would still be legally insufficient to show
reversible error. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
("argument in a brief cannot take the place of evidence").
Fourth, Appellant identifies differences between the claimed invention
and Brown and between the claimed invention and the applicant-admitted
prior art. Appeal Br. 20-21. This argument is not persuasive. One cannot
show nonobviousness by attacking references individually when the
rejection is based on a combination of references, as it is here. In re Keller,
642 F.2d 413, 426 (CCPA 1981). Each reference cited by the Examiner
must be read, not in isolation, but for what it fairly teaches in combination
with the prior art as a whole. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
Fifth, Appellant argues that Brown fails to disclose the limitation
"wherein ... the PVD seed layers have no substantial overhangs sealing or
pinching-off the top comers of the at least one opening," Appeal Br., Claims
App'x Al, because Brown states that "an excessively thick seed layer in the
wide-open areas interferes with the subsequent filling of the channel and via
openings." Brown, col. 2, 11. 39-47. But the portion of Brown Appellant
directs us to discusses the "background art" and "current technology." Id. at
col. 1, 1. 10, col. 2, 1. 39 (emphasis omitted). The following paragraph
discusses "[a] solution" to this problem. Id. at col. 2, 1. 48. In the section
titled "Disclosure of the Invention," Brown discusses its process for forming
seed layers, which it describes as solving the problem of "filling of the
channel and via openings." Id. at col. 2, 1. 57 - col. 3, 1. 13. Accordingly,
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Brown's disclosure is not limited to seed layer deposition processes that
produce "excessively thick seed layer[ s ]" or that produce seed layers that
"interfere[] with the subsequent filling of the channel and via openings," as
Appellant argues. Appeal Br. 21 (citing Brown, col. 2, 11. 39-47 (emphasis
omitted). We therefore do not find this argument persuasive.
Finally, Appellant argues both claim 24 and claim 25 separately. Id.
at 22-23. Both of these claims recite substrate bias voltage as a parameter
that may be varied to improve conformality. Id. at Claims App'x A3.
Accordingly, Appellant's arguments regarding the Examiner's combination
of Brown's deposition process and the admitted prior-art knowledge that
conformality could be improved by varying substrate bias voltage fail to
persuade us for the same reasons as discussed above. We therefore affirm
the Examiner's rejection of claims 1, 24, and 25 under 35 U.S.C. § 103(a) as
obvious over the combination of Brown and applicant-admitted prior art.
Obviousness: Claims 2-5, 11, 18-22, and 26
The Examiner rejected claims 2-5, 11, 18-22, and 26 as obvious over
the combination of Brown, applicant-admitted prior art, and Liu. Final Act.
9-10, 13.
Appellant argues for several reasons that Liu cannot be combined with
Brown. Appeal Br. 26-35. First, Appellant argues that Brown and Liu
teach away from one another, because, while Brown teaches performing its
second deposition step at above 250 °C, Liu teaches that it is "critical" to
cool the substrate to room temperature in order to avoid "undesirable
blistering, or other imperfections." Brown, col. 2, 1. 61 - col. 3, 1. 4; Liu,
col. 1, 11. 51-55, col. 4, 11. 46-52. We do not find this argument persuasive.
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Liu and Brown do not teach away from one another, because, although both
references teach operating at different temperatures, neither criticizes,
discredits, or otherwise discourages operating at the other reference's
temperature. Fulton, 391 F.3d at 1201. Liu's description of its cool-down
step as "critical" is not an assertion that no process without such a step can
work well, but rather a description of the importance of the step to Liu's
process. Accordingly, it is not a criticism of Brown's process and, therefore,
it does not teach away from a combination with Brown.
Second, Appellant argues that Brown and Liu cannot be combined for
the reason the Examiner offers, that Liu teaches the benefit of performing
both deposition steps in the same chamber. Appeal Br. 28-29 (citing Fourth
Cheung Declaration (Dec. 5, 2012) i-f lO(b)). Specifically, Appellant argues
that, because Brown already teaches performing both deposition steps in the
same chamber, there would have been no reason for a person of ordinary
skill in the art to combine Brown's teachings with the teachings of Liu to
permit such a single-chamber process. Id. We agree. Brown discloses
using a constantly varying deposition temperature in place of two separate
deposition steps performed at different temperatures, Brown, col. 6, 11. 26-
30, which could be accomplished only by performing the entire deposition in
a single chamber. Given this disclosure, there would have been no reason
for a person of ordinary skill in the art to tum to the teachings of Liu in order
to learn how to perform a single-chamber deposition process.
We disagree, however, that the Examiner's combination of Liu and
Brown in this rejection constituted reversible error. The Examiner relies on
Liu to teach or suggest the following subject matter:
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"said continuous PVD seed
layer and said another PVD seed
layer are deposited in the same
PVD chamber"
2-5, 11, 18-22, and 26
"said another PVD seed layer is 3, 18, and 21
deposited over the substrate
prior to the deposition of the
continuous PVD seed layer"
"[PVD] seed layers have no 3, 4, 11, and 18-22
substantial overhangs sealing or
pinching-off the top comers of
the at least one opening"
"said continuous PVD seed 4, 19, and 22
layer is deposited over the
sidewalls and bottom of the at
least one opening prior to the
deposition of said another PVD
seed layer"
"combined thickness of the 5
PVD seed layers over the field
is larger than about 500A"
Final Act. 9-10.
Although the Examiner looks to Liu to teach or suggest these
limitations, they are taught or suggested by the combination of Brown and
applicant-admitted prior art, even when the teachings of Liu are not
included. As discussed above, depositing both PVD seed layers in a single
chamber is taught by Brown. Brown, col. 6, 11. 26-30.
With respect to the limitations requiring the layers to be deposited in
particular orders, we note that the only difference in Appellant's claims
between the two PVD seed layers is that they are deposited using deposition
processes with "at least one deposition parameter whose value is different,"
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without specifying whether the deposition parameter in question is larger or
smaller in either particular one of the PVD seed layers. Appeal Br., Claims
App'x Al. Accordingly, either layer can be considered the recited
"continuous PVD seed layer," and either layer can be considered the recited
"another PVD seed layer." Thus, Brown's disclosure of depositing two
separate PVD seed layers can be considered the disclosure of either a
continuous layer first and another layer second or another layer first and a
continuous layer second. See, e.g., Brown, Abstract.
With respect to the claim limitations requiring that the "[PVD] seed
layers have no substantial overhangs sealing or pinching-off the top comers
of the at least one opening," the Examiner found that Brown discloses the
limitation of claim 1 that recites "the combined seed layers inside the at least
one opening leave sufficient room for electroplating inside the at least one
opening." Final Act. 9 (citing Brown, col. 6, 11. 30-35). Brown makes clear
that electroplating inside the opening following deposition of the seed layers
is possible because Brown's seed layers solve the problem in the previous
technology of thick seed layers "interfer[ing] with the subsequent filling of
the channel and via openings." Brown, col. 2, 11. 39--47. Accordingly,
Brown teaches or suggests the seed layers not interfering with the filling of
the opening by, for example, sealing or pinching off its top comers.
Finally, with respect to the limitation that requires a combined seed
layer thickness of about 500 angstroms or more, the Examiner found that
Brown taught or suggested the limitation of claim 1 that recites "the
combined thickness of the seed layers over the field is sufficient to enable
uniform electroplating across the substrate." Final Act. 8-9. Brown
discloses that, "[ t Jo guarantee a minimum seed layer thickness of [ 50
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angstroms] anywhere in the channel opening ... the seed layer thickness in
the wide-open areas tends to be ... in the range of [ 1000 to 2000
angstroms]." Brown, col. 4, 11. 29--33. This teaches the claim limitation
requiring a thickness of 500 angstroms or more. 10 Thus, each of the
limitations the Examiner found taught or suggested by Liu is also taught or
suggested by Brown, meaning that the Examiner's erroneous inclusion of
Liu in the rejection was not harmful error.
With respect to claim 11, Appellant repeats its argument, discussed
above, that Brown teaches that seed layers were known to interfere with
subsequent filling, so Brown cannot teach or suggest the limitation requiring
that the seed layers have "no substantial overhangs." Appeal Br. 36
(emphasis omitted). For the reasons discussed above, we do not find this
argument persuasive.
With respect to claims 18-20, Appellant argues that none of the
applied references teaches or suggests the limitation requiring that one of the
seed layers have a thickness of "from about 50A to no more than 400A"
(claims 18 and 19) or "from about 50A to no more than 300A" (claim 20).
Appeal Br. 37. As discussed below, the Examiner relied on Hoinkis to teach
or suggest this limitation in rejecting claims 10, 23, 29, and 30, and the
Examiner did not explain in the Final Rejection or the Answer why the
references applied here (Brown, Liu, and applicant-admitted prior art) taught
this limitation. Final Act. 9--10, 13; Answer 5-12. Accordingly, we are
10 In fact, Appellant argues that Brown requires a thickness of 1000 to 2000
angstroms in the wide-open areas. Appeal Br. 39--40. As discussed below,
we disagree that Brown requires such a thickness, but it does teach or
suggest that such a thickness would produce a continuous PVD seed layer.
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persuaded that the Examiner committed harmful error in rejecting claims
18-20 as obvious over the combination of Brown, Liu, and applicant-
admitted prior art. We therefore reverse the rejection of these claims. We
affirm the rejection of claims 2-5, 11, 21, 22, and 26.
Obviousness: Claims 10, 23, 29, and 30
The Examiner rejected claims 10, 23, 29, and 30 as obvious over the
combination of Brown, applicant-admitted prior art, Liu, and Hoinkis. Final
Act. 10-11, 14--15.
Appellant repeats the arguments discussed above regarding the
Examiner's proffered reason to combine Brown and Liu. As we noted
above, we agree that the Examiner's reason for combining Brown and Liu is
in error, but that error was not harmful. The only limitations for which the
Examiner directs us to Liu also are taught or suggested by Brown.
i\.ppellant argues that the range of thicknesses disclosed by Hoinkis
and the range of thicknesses recited in these claims do not overlap. Appeal
Br. 40, 65. Hoinkis discloses physical vapor deposition "of a layer in
thickness ... less than about 1000 Angstroms, and advantageously between
about 400 [and] 500 Angstroms." Hoinkis, col. 2, 11. 24--28. The range of
thicknesses "less than 1000 Angstroms" overlaps Appellant's claimed
ranges of "from about 50A to no more than 400A" and "from about 50A to
no more than 300A." Appeal Br., Claims App'x A2-A3. Such overlapping
disclosure creates a prima facie case of obviousness. In re Geisler, 116 F.3d
1465, 1469 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir.
1990).
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Appellant argues that, despite Hoinkis' s disclosure, a person of
ordinary skill in the art would not have used layers as thin as those claimed,
because both Brown and Chen 11 disclose that no continuous layer can be less
than 500 angstroms thick. Appeal Br. 39--43 (citing Brown, col. 4, 11. 29--
34; Chen, col. 4, 11. 33--48). But neither Brown nor Chen makes such a
statement. Brown says that obtaining a thickness of at least 50 angstroms
inside the opening (not obtaining a continuous layer) "tends" to lead to (not
requires) a thickness of 1000 to 2000 angstroms in wide-open areas. Brown,
col. 4, 11. 29-34. Chen does not even go this far in denigrating thin layers. It
says that "an ultra-thin seed layer can be employed," with such a seed layer
"having a thickness of about 50 to about 500 Angstroms." Chen, col. 4, 11.
21-51. Even in describing the background art, Chen only states that "a
relatively thick ( 1000 Angstroms) copper seed layer is usually required," not
that such a thick layer is always necessary. Id. at col. 4, 11. 15-17 (emphasis
added). Accordingly, neither Brown nor Chen makes it so clear that thin
layers were known to be discontinuous that they can overcome the
disclosure of Hoinkis.
Finally, Appellant states that Hoinkis is not valid prior art, because
Appellant has antedated Hoinkis. Appeal Br. 62. Appellant's only
argument for this contention is a bare reference, without pinpoint citations,
to an affidavit of the inventor, which is 22 paragraphs long and covers 7 6
pages. Id. Our rules require that an Appeal Brief include "arguments" that
"shall explain why the examiner erred." 37 C.F.R. § 41.37(c)(l)(iv).
"[M]ere statements of disagreement ... do not amount to a developed
11 Chen, U.S. Patent No. 6,197,181 Bl, issued Mar. 6, 2001.
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Application 12/471,571
argument." SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1320 (Fed. Cir. 2006). Accordingly, Appellant's bare reference to a
voluminous declaration is not an argument under our rules, and, therefore, it
does not persuade us of any reversible error by the Examiner in failing to
find that Appellant antedated Hoinkis. 12 Thus, we affirm the obviousness
rejection of claims 10, 23, 29, and 30.
Obviousness: Claim 14
The Examiner rejected claim 14 as obvious over the combination of
Brown, applicant-admitted prior art, Liu, and Gandikota. Final Act. 11-12.
Appellant argues that none of the applied references individually teaches
three separate seed layers, as required by claim 14. Appeal Br. 47. We find
this argument persuasive of reversible error by the Examiner.
Claim 14 requires "at least one additional seed layer over the PVD
seed layers" recited in claim 2, from \vhich claim 14 depends. i\.ppeal Br.,
Claims App'x A2. Claim 2 recites two PVD seed layers, a "continuous PVD
seed layer" and "another PVD seed layer." Id. at A 1. Accordingly, claim 14
requires the presence of three seed layers. As discussed above, the
Examiner found that the combination of Brown, Liu and the applicant-
admitted prior art would have taught or suggested two PVD seed layers.
Here, the Examiner relies on Gandikota to teach or suggest a third layer.
Final Act. 11-12 (citing Gandikota, col. 7). But Gandikota teaches a seed
layer, an adhesion layer, and a barrier layer. Gandikota, col. 6, 11. 63-64,
12 The same is true of Appellant's arguments for antedating Gandikota and
Yang, Appeal Br. 44, 48--49, which rely on the same evidence in the same
way.
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Application 12/471,571
col. 7, 11. 31-35, Fig. 4. Although Appellant admits that both the seed layer
and the adhesion layer can be considered seed layers, Appeal Br. 46, the
Examiner does not explain why the barrier layer is also a seed layer. Final
Act. 11-12. Accordingly, we reverse the rejection of claim 14.
Obviousness: Claims 16, 27, 28, 31, and 32
The Examiner rejected claims 16, 27, 28, 31, and 32 as obvious over
the combination of Brown, applicant-admitted prior art, Liu, Hoinkis, and
Yang. Final Act. 13-14. With respect to claim 16, Appellant argues that
none of the applied references individually teaches the three separate seed
layers required by the claim. Appeal Br. 51-52, 60. We find this argument
persuasive of reversible error by the Examiner.
Claim 16 requires "at least one additional seed layer" in addition to
the PVD seed layers recited in claim 2, from which claim 14 depends.
i\.ppeal Br., Claims i\.pp'x i\2. Claim 2 recites t\vo PVD seed layers, a
"continuous PVD seed layer" and "another PVD seed layer." Id. at Al.
Accordingly, claim 16 requires the presence of three seed layers. As
discussed above, the Examiner found that the combination of Brown, Liu
and the applicant-admitted prior art would have taught or suggested two
PVD seed layers. Here, the Examiner relies on Hoinkis to teach or suggest a
third layer. Final Act. 14 (citing Hoinkis, col. 2). But Hoinkis teaches only
two layers: a copper seed layer and a copper PVD layer. Hoinkis, col. 2, 11.
21-31. Accordingly, we reverse the rejection of claim 16.
The same error does not affect the rejections of claims 27, 28, 31, and
32. None of these claims requires a third seed layer; they merely recite
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Application 12/471,571
limitations on the order in which the two seed layers of the claims from
which they depend are deposited. Appeal Br., Claims App'x A3.
As noted above, we are not persuaded by Appellant's arguments that
Hoinkis and Yang have been antedated. Nevertheless, even if we were
persuaded that Hoinkis and Yang were antedated, we would not be
persuaded that the Examiner's citation of those references constituted
harmful error. As discussed above with respect to claims 2-5, 11, 18-22,
and 26, the limitations reciting the order in which the PVD seed layers are
deposited are taught or suggested by Brown. Because we are not persuaded
by any of Appellant's arguments regarding claims 27, 28, 31, and 32, we
affirm the rejection of those claims.
ORDER
The Examiner's rejection of claims 18-20 under 35 U.S.C. § 103(a) as
obvious over the combination of Brown, Liu, and applicant-admitted prior
art is reversed. The Examiner's rejection of claim 14 under 35 U.S.C.
§ 103(a) as obvious over the combination of Brown, Liu, Gandikota, and
applicant-admitted prior art also is reversed. The Examiner's rejection of
claim 16 under 35 U.S.C. § 103(a) as obvious over the combination of
Brown, Liu, Hoinkis, Yang, and applicant-admitted prior art is reversed.
The Examiner's rejection of claims 10, 11, 20, 23, and 29 under
35 U.S.C. § 112 for lack of enablement is affirmed. The Examiner's
rejections of the following claims under 35 U.S.C. § 103(a) also are
affirmed: claims 1, 24, and 25 as obvious over the combination of Brown
and applicant-admitted prior art; claims 2-5, 11, 21, 22, and 26 as obvious
over the combination of Brown, Liu, and applicant-admitted prior art; claims
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10, 23, 29, and 30 as obvious over the combination of Brown, Liu, Hoinkis,
and applicant-admitted prior art; and claims 27, 28, 31, and 32 as obvious
over the combination of Brown, Liu, Hoinkis, Yang, and applicant-admitted
prior art.
Thus, claims 14, 16, 18, and 19 are not the subjects of any affirmed
rejection. Claims 1-5, 10, 11, and 20-32 remain subject to at least one
affirmed rejection.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED-IN-PART
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