Ex Parte Cooperberg et al

Board of Patent Appeals and Interferences

Feb 27, 2009

10024208 (B.P.A.I. Feb. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________

Ex parte DAVID J. COOPERBERG, VAHID VAHEDI,
DOUGLAS RATTO, HARMEET SINGH, and NEIL BENJAMIN
______________

Appeal No. 2008-6350
Application 10/024,208
Technology Center 1700
_______________

Decided:1 February 27, 2009
_______________

Before EDWARD C. KIMLIN, CHARLES F. WARREN, and
CATHERINE Q. TIMM, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicants appeal to the Board from the decision of the Primary
Examiner finally rejecting claims 1 through 11, 13 through 15, and

1 The two month time period for filing an appeal or commencing a civil
action specified in 37 C.F.R. § 1.304, begins to run from the “Decided” date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal No. 2008-6350
Application 10/024,208
39 through 61 in the Office Action mailed September 7, 2006 (Office
Action). 35 U.S.C. §§ 6 and 134(a) (2002); 37 C.F.R. § 41.31(a) (2006).
We affirm the decision of the Primary Examiner.
Claim 1 illustrates Appellants’ invention of a plasma processing
system, and is representative of the claims on appeal:
1. A plasma processing system comprising:
a plasma processing chamber;
a vacuum pump connected to the processing chamber;
a substrate support on which a substrate is processed within the
processing chamber;
a dielectric member having an interior surface facing the substrate
support, wherein the dielectric member forms a wall of the processing
chamber;
a gas injector extending through the dielectric member, the gas
injector comprising a body including an axial end surface exposed within the
processing chamber, a side surface extending axially from the axial end
surface, and a plurality of gas outlets including at least one on-axis outlet in
the axial end surface and a plurality of spaced-apart off-axis outlets in the
side surface, the off-axis outlets inject process gas at an acute angle relative
to a plane parallel to an exposed surface of the substrate;
a common gas supply in fluid communication with a first gas line and
a second gas line, the first gas line being in fluid communication with the
on-axis outlet but not with the off-axis outlets and the second gas line being
in fluid communication with the off-axis outlets but not with the on-axis
outlet;
flow controllers operable to supply process gas from the common gas
supply at flow rates that are independently varied between the on-axis outlet
and the off-axis outlets into the processing chamber; and
an RF energy source which inductively couples RF energy through the
dielectric member and into the chamber to energize the process gas into a
plasma state to process the substrate.
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Application 10/024,208
The Examiner relies upon the evidence in these references (Ans. 2 3):
Goodyear US 5,532,190 Jul. 2, 1996
Arami US 5,958,140 Sep. 28, 1999
Ballance US 6,090,210 Jul. 18, 2000
Powell US 6,287,643 B1 Sep. 11, 2001
Murugesh US 6,450,117 B1 Sep. 17, 2002
Chang WO 99/57747 A1 Nov. 11, 1999
Ni3 WO 00/41212 A1 Jul. 13, 2000
Appellants request review of the grounds of rejection under 35 U.S.C.
§ 103(a) advanced on appeal: claims 1 through 11, 13, 14, and 39 through
61 over Ni in view of Chang or Murugesh and Arami or Goodyear or
Ballance (Ans. 7); and claim 15 over Ni in view of Chang or Murugesh and
Arami, or Goodyear, or Balance, as applied to claims 1 through 11, 13, 14,
and 39 through 61, further in view of Powell.4 App. Br. 10; Ans. 7 and 11.

2 We consider these documents: Appeal Brief filed June 24, 2007, as
amended in the document filed October 9, 2007; Examiner’s Answer mailed
January 7, 2008; and Reply Brief filed March 6, 2008.
3 Ni claims priority to, among other things, United States Application
09/223,273, filed December 30, 1998, which matured into US 6,230,651 B1
issued May 15, 2001, and is commonly assigned along with the instant
Application to Lam Research Corporation.
4 In the Decision entered April 6, 2006, in Appeal No. 2006-0290
(Decision) in this Application, we entered these grounds of rejection as new
grounds of rejection. Decision 3 and 14-16. We further affirmed several of
the Examiner’s grounds of rejection under 35 U.S.C. § 103(a) and made
another new ground of rejection of claims 51 through 55 under 35 U.S.C.
§ 103(a) over the combined teachings of Ni, Chang, Murugesh, Arami,
Goodyear, Balance, and Hassan (US 4,270,999 issued June 2, 1981), and of
certain claims under 35 U.S.C. § 112, second paragraph. Decision, e.g., 2-4.
The affirmed grounds of rejection and the new ground of rejection under
35 U.S.C. § 112, second paragraph, were withdrawn by the Examiner in
view of amendments to the claims in the Amendment filed June 6, 2006
(Amendment). Office Action 7-8. The Examiner also withdrew the
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Appellants argue the claims in the first ground of rejection in the
following groups: claim 1-6, 8-11, 13, 14, 39-43, 45-50, 56, and 58-61;
claims 7, 44, and 57; and claims 51-55. App. Br. 13, 40, and 42. We decide
this appeal based on claims 1, 7, 15, and 51 as representative of the grounds
of rejection and Appellants’ groupings of claims.5 37 C.F.R. §
41.37(c)(1)(vii) (2006).
The threshold issue in this appeal is whether Appellants have shown
that the evidence in the combined teachings of Ni, Chang, Murugesh, Arami,
Goodyear, and Balance with respect to claims 1, 7, and 51, and as further
combined with Powell with respect to claim 15 would not have disclosed a
plasma processing system as claimed to one of ordinary skill in this art, and
if not, the issue with respect to the grounds of rejection is whether
Appellants have shown that the evidence of record, including the
Cooperberg Declaration, weighs in favor of nonobviousness.
In order to consider the issues raised in this appeal, we first interpret
independent claims 1 and 7 and claims 15 and 51, dependent on claim 1, by
giving the terms thereof the broadest reasonable interpretation in their

rejection that included Hassan and added claims 51 through 55 to the first
ground of rejection above on the basis Ni has similar disclosure to Hassan.
Office Action 8; see Dec. 3 and 16. Appellants further changed the record
from the prior appeal by submitting Appellant Cooperberg’s Declaration
under 37 C.F.R. § 1.132 (Cooperberg Declaration) with the Amendment.
App. Br., Evidence Appendix.
5 Appellants’ contentions with respect to claims 9, 41, and 42 merely recite
the limitations of these claims, which does not constitute argument for
separate patentability. App. Br. 33-34; 37 C.F.R. § 41.37(c)(1)(vii) (2006)
(“A statement which merely points out what a claim recites will not be
considered an argument for separate patentability.”).
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Application 10/024,208
ordinary usage in context as they would be understood by one of ordinary
skill in the art in light of the written description in the Specification unless
another meaning is intended by Appellants as established therein, and
without reading into the claims any disclosed limitation or particular
embodiment. See, e.g., In re Icon Health and Fitness, Inc., 496 F.3d 1374,
1379 (Fed. Cir. 2007); In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004), and cases cited therein; In re Morris, 127 F.3d 1048,
1054-55 (Fed. Cir. 1997).
We determine claim 1 specifies in pertinent part, as illustrated by the
embodiments depicted in Specification Figures 1 and 2a-c, a plasma
processing system comprising at least the specified apparatus components
including, among other things, plasma processing chamber 10 having
dielectric member 20 that faces substrate support 12 and is between RF
(radio frequency) antenna 18 and impedance matching circuitry 19 that
inductively couples RF energy into chamber 10. Gas injector 22 has a side
surface extending axially from the axial end surface, and extends through
dielectric member 20 such that the axial end surface is exposed in chamber
10. See Spec. 10-11. Gas injector 22 has an on-axis injection outlet 24 in
the axial end surface and two or more spaced-apart off-axis outlets 26 in the
side surface, wherein off-axis outlets 26 inject gas at an acute angle relative
to a plane parallel to an exposed surface of a substrate on substrate support
12. See Spec. 12-13. Claim 15 further limits claim 1 in specifying that gas
injector 22 has an electrically conducting shield which minimizes plasma
ignition within the gas outlets. See Spec. 13 and Fig. 2c.
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Application 10/024,208
We further determine claim 1 specifies common gas supply 23 is in
fluid communication with first gas line having flow controller 36a that is in
fluid communication with only on-axis injection outlet 24, and with second
gas line having flow controller 36b that is in fluid communication with only
off-axis outlets 26, wherein the respective flow controllers independently
vary the gas flow in the lines. See Spec. 11-13.
We interpret the term “common gas supply” in light of the
Specification to encompass any gas supply structure capable of supplying
the same gas to both gas lines. Indeed, there is no claim language or
disclosure in the Specification which limits the common gas supply to a
single gas line that is in fluid communication with the gas lines to the gas
outlets as illustrated in Figures 1 and 2a-c. See Spec. 11-12. The term
“common gas supply” does not encompass a particular gas such as a
“process” gas as stated in claim 1, “a gas mixture” as stated in claim 51, or
“the same gas composition” as Appellants contend, because such recitations
do not structurally limit any apparatus component of the claimed system.
See App. Br., e.g., 16; see also Reply Br. 7-8. In this respect, we point out
that a “gas” on which an apparatus component can perform work does not
confer a structural limitation on the claimed system. See, e.g., In re Otto,
312 F.2d 937, 939-40 (CCPA 1963); In re Rishoi, 197 F.2d 342, 344-45
(CCPA 1952) (“[T]here is no patentable combination between a device and
the material upon which it works.”); In re Young, 75 F.2d 996 (CCPA 1935);
In re Smith, 36 F.2d 302, 303 (CCPA 1929)(“It will be borne in mind that it
has been long established that a person may not patent a combination of
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Appeal No. 2008-6350
Application 10/024,208
device and material upon which the device works, nor limit other persons
from the use of similar material by claiming a device patent.”).
We determine claim 7 encompasses substantially the same plasma
processing systems as claim 1. In this respect, claim 7 specifies, among
other things, that the on-axis outlet of the gas injector receives process gas
from a center passage in the injector which is in fluid communication with a
first gas line of a common gas supply, and the off-axis outlets receive
process gas from an annular passage surrounding a central passage that is in
fluid communication with a second gas line of that gas supply. Such an
injector falls within the claim language of claim 1. Claim 7 specifies that the
side surface of injector 22 must be “conical” to any extent. We agree with
Appellants that this term has its common, ordinary meaning as reflected in
the conical shape of injector 22 extending below dielectric member 20
illustrated in Figures 2a-c. App. Br. 41.6
The transition term “comprising” opens claims 1 and 7 to encompass
processing systems containing any manner of additional structural
components. See, e.g., KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351,
1356 (Fed. Cir. 2000); Vehicular Techs. Corp. v. Titan Wheel Int'l, Inc.,
212 F.3d 1377, 1383 (Fed. Cir. 2000); In re Baxter, 656 F.2d 679, 686
(CCPA 1981).
While we refer to embodiments illustrated in Specification Figures
1 and 2a-c in interpreting claims 1, 7, 15, and 51, we find no basis in the
language of these claims or in the disclosure in the Specification on which

6 See, e.g., conical, The American Heritage Dictionary of The English
Language 389 (4th ed., Boston, Houghton Mifflin Company, 2000).
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Appeal No. 2008-6350
Application 10/024,208
to limit the claims to these embodiments. See, e.g., In re Zletz, 893 F.2d
319, 321-22 (Fed. Cir. 1989).
We find Ni would have disclosed to one of ordinary skill in this art, as
illustrated by embodiments depicted in Figures 1 and 3a-c, a plasma
processing system including plasma processing chamber 10 having dielectric
member 20 that faces substrate support 12, and is between RF antenna 18
and impedance matching circuitry 19 that inductively couples RF energy
into chamber 10. Ni 9-10 and 11; see also 5-7 and 8. Gas injector 22
extends below the lower surface of dielectric member 20 at least to the
extent that a plurality of gas outlets in the axial end surface are within
processing chamber 10, and is connected to gas supply 23. Ni 9-10 and 11;
see also 8. In “Figure 3a, the gas injector 22 includes a cylindrical body
40[,] . . . a central bore 44 extending through the upper axial end, and a
plurality of gas outlets 46 extending between the bore and the exterior
surface of the lower axial end . . . .” Ni 11:7-10. The inductively coupled
RF energy energizes gas injected into chamber 10 into a plasma state. Ni,
e.g., 5-7 and 10.
Ni discloses:
The . . . gas injector can inject the process gas toward a
primary plasma generation zone in the chamber. The gas
outlets can be located in an axial end surface of the gas injector.
For instance, the gas outlets can include a center gas outlet
extending in an axial direction perpendicular to the exposed
surface of the substrate and a plurality of angled gas outlets
extending at an acute angle to the axial direction. . . . The gas
outlets can have various configurations and/or spatial
arrangements. For example, the gas injector can include a
closed distal end and the gas outlets can be oriented to inject
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Appeal No. 2008-6350
Application 10/024,208
process gas at an acute relative to a plane parallel to an exposed
surface of the substrate.
Ni 5:26 to 6:12.
Ni discloses:
The number of gas outlets and/or angle of injection of
gas flowing out of the gas outlets can be selected to provide
desired gas distribution in a particular substrate processing
regime. For instance, the number, size, angle of injection
and/or location of the outlets within the chamber can be adapted
to a particular antenna design used to inductively couple RF
energy into the chamber, the gap between the upper wall and
the exposed surface of the substrate, and etch process to be
performed on the substrate.
Ni 9:1-7.
Ni discloses:
According to a preferred embodiment, the gas injector is
a cylindrical member having . . . either 8 or 9 gas outlets in one
end thereof. The 9 gas outlet arrangement is useful for a
polysilicon etching process and the 8 gas outlet arrangement is
useful for an aluminum etching process. In the 9 hole
arrangement, one hole is provided in the center of the axial end
of the gas injector and 8 holes . . . located adjacent the outer
periphery of the axial end. In the 8 hole arrangement, the center
hole is omitted. In either case, the 8 holes can extend axially or
they can be at an angle to the central axis of the bore extending
part way through the gas injector.
Ni 13:9-19.
Ni discloses:
The gas injector advantageously allows an operator to
modify a process supply arrangement for a plasma etch reactor
to optimize gas distribution in the reactor. For example, in
plasma etching aluminum, it is desirable to distribute the
process gas into the plasma rather than direct the process gas
directly towards the substrate being etched. In plasma etching
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Appeal No. 2008-6350
Application 10/024,208
polysilicon, it is desirable to distribute the process gas into the
plasma and direct the process directly towards the substrate
being etched. Further optimization may involve selecting a gas
injector which extends a desired distance below the inner
surface of the window and/or includes a particular gas outlet
arrangement. That is, depending on the etching process, the
number of gas outlets, the location of the gas outlets such as on
the axial end and/or along the sides of the gas injector as well as
the angle(s) of injection of the gas outlets can be selected to
provide optimum etching results. For example, the angle of
injection is preferably larger for larger size substrates.
Ni 14:3-15.
Ni discloses:
The gas injector can be used to plasma etch aluminum by
injecting the process gas into the interior of the chamber such
that the gas is not injected directly towards the substrate being
processed. In a preferred embodiment, the gas injector does not
include a central gas outlet in the axial end thereof. Instead, 4
or 8 gas outlets located around the periphery of the axial end are
used to inject gas. . . .
The gas injector can also be used to plasma etch
polysilicon by injecting the process gas into the interior of the
chamber such that the gas is injected directly towards the
substrate being processed. In a preferred embodiment, the gas
injector includes a central gas outlet in the axial end thereof and
4 to 8 gas outlets located around the periphery of the axial end. .
. .
Ni 14:16 to 15:4.
Ni discloses “[t]he gas outlets can be orientated to inject the gas in any
direction, including directly at the substrate, at an acute angle with respect to
the substrate, parallel to the substrate or back toward the upper plasma
boundary surface (at an oblique angle with respect to the
longitudinal axis of the nozzle), or combinations thereof.” Ni 20: 6-10.
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Ni discloses the injector should have no sharp corners at the distal end
in order to reduce local electric field enhancement near the tip. Ni 20:15-16;
see also 17:4-21.
We find one of ordinary skill in this art would have found from
Figures 1 and 3a-c and the disclosure of Ni, particularly the description of
Figure 3a, that illustrated injectors 22 have off-axis outlets adjacent the
periphery of the axial end surface that inject gas at an acute angle relative to
a plane paralleled to an exposed surface of the substrate, and do not have a
central on-axis gas outlet.
We find Chang would have disclosed to one of ordinary skill in this
art, as illustrated by embodiments depicted in Figures 1 and 7, a plasma
processing system for film deposition including gas delivery system 46
which includes a gas injector extending through dielectric member 50 into
process chamber 38, and RF system 42 which couples RF energy into
chamber 38. Chang 6-9 and 18-19. The injector includes a central passage
connecting gas source 100a via flow controller 120a and gas delivery lines
92 with top nozzle 96 which is an on-axis outlet in the distal end of the
injector. The injector further has an annular passage surrounding the central
passage, which annular passage connects gas sources 100b and 100d via
flow controllers 120b and 120c and gas delivery lines 92 to top vent 98 that
“is an annular opening,” that is, an outlet, “around the top nozzle 96.”
Chang 9 and 18. We find one of ordinary skill in this art would have found
from FIGS. 1 and 7 that only the structure forming the interior surface of top
vent 98 and the exterior surface of nozzle 96 and acting to shape the gas
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Application 10/024,208
flowing through top vent 98, extends below the lower surface of dielectric
member 50 into plasma processing region 52.
Chang discloses “[t]he top nozzle 96 and top vent 98 allow
independent control of top and side flows of the gases, which improves film
uniformity and allows fine adjustment of the film’s deposition and doping
parameters.” Chang 9:25-28.
We find Murugesh would have disclosed to one of ordinary skill in
this art, as illustrated by embodiments depicted in Figures 1A and 3, a
plasma processing system for film deposition including plasma processing
chamber 30 wherein gases are provided through first gas distributor 65 and
second gas distributor 215. The two gas distributors can be in different
locations in chamber 30 as shown in Figure 1A or combined into a single
injector in ceiling 55 of chamber 30 as shown in Figure 3. Murugesh, e.g.,
col. 3, ll. 40-55, col. 5, l. 41 to col. 7, l. 12, and col. 7, l. 65, to col. 8, l. 7.
In Figure 1A, second gas distributor 215 is located in ceiling 55 of chamber
30, and has a central passage to outlets 247b and an annular passage to
outlets 247a, both of which are in fluid communication with a common gas
or plasma supply. Murugesh, e.g., col. 5, l. 41 to col. 7, l. 32. In Figure 3,
first gas distributor 65 and second gas distributor 215 “are combined in a
single structure,” wherein a gas supply line with flow controller 80 provides
a gas through a central passage to “first gas outlets 85” and another gas
supply line 170 with flow controller 120 provides another gas through an
annular passage to “second gas outlets 247.” Murugesh col. 7, l. 65, to col.
8, l. 7. Plasma generator 110 inductively couples RF energy into chamber
30 using inductor antenna 115 on dielectric ceiling 55. Murugesh, e.g.,
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col. 4, ll. 1-14.
We find Arami would have disclosed to one of ordinary skill in this
art, as illustrated by embodiments depicted in Figures 2 and 5, CVD
processing system 20 which includes processing chamber 21 having gas
reaction region 49 and shower head injector section 35. Shower head
injector section 35 has three concentrically, arranged gas chambers 37A,
37B, 37C each of which is in fluid communication with a gas supply pipe
38, 39, 40, respectively. Each supply pipe has a mass flow controller 44A,
44B, 44C, respectively, which in turn is connected to a gas supply source 41,
42, 43, respectively. The mass flow controllers “can individually manage
the gas supply amounts to the corresponding gas supply pipes.” Arami, e.g.,
col. 3, ll. 23-35, col. 4, ll. 31-57, and col. 4, l. 66 to col. 5, l. 26; see also,
e.g., col. 1, ll. 9-39.
Arami discloses
A processing gas can be independently supplied to the
respective gas chambers 37A to 37C . . . independently
controlled by the mass-flow controllers . . . [such that] gas
reaction region 49 . . . can be divided into three zones, and the
processing gas can be supplied while changing the supply
amounts for the respective zones. As a result, the gas supply
amount per unit area to the wafer W can be arbitrarily changed
for each zone, unlike a shower head section with a conventional
structure in which the interior is not divided. Accordingly,
various types of films can be formed in various processes with
high in-plane uniformity.
Arami, col. 10. ll. 32-44.

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We find that Goodyear would have evinced to one of ordinary skill in
the art that in the plasma processing system disclosed in
JP-A-56-873328, the gas mixture is supplied to the perforated
electrode by the first supply line feeding a central area of the
perforated electrode and by the second supply line feeding a
peripheral area of the perforated electrode. The gas flow over
the substrate is radially outwards from the central area. In this
known apparatus and method the same gas mixture is fed to
both the peripheral and center areas, but at different rates which
are controlled by a first mass flow meter on the first supply line
and a second mass flow meter on the second supply line. This
permits a reduction of non-uniformities in the plasma between
the central area and the peripheral area.
Goodyear, col. 1, ll. 39-50; see also col. 1, ll. 22-38.
We find Goodyear would have disclosed to one of ordinary skill in the
art, as illustrated by embodiments depicted in Figure 1, a perforated gas-
feeding showerhead electrode 12 for the chamber of a plasma processing
system that employs RF energy. Goodyear, e.g., col. 2, ll. 11-53, and col. 3,
l. 64 to col. 4, l. 19. Showerhead electrode 12 has first supply line 21 that
feeds central area 12a, and second supply line 22 that feeds annular
peripheral area 12b. Goodyear, e.g., col. 2, ll. 11-53, col. 4, ll. 20-36, and
Fig. 1. Goodyear discloses the problem that where an identical gas
composition is fed via the lines 21 and 22, one of the gases in the
composition can be depleted at a faster rate. Goodyear solves the problem
by using valves and flow meters 26a, 23a, 24a, 55, 56 and 26b, 23b, 24b, 55,
56 in supply lines 21, 22, respectively, which provides the capability to
independently adjust the amount of each of the ingredient gasses in the gas
supplied to each of areas 12a, 12b of perforated electrode 12 so that “the
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Application 10/024,208
plasma treatment is carried out more uniformly over the area of the . . .
electrode.” Goodyear, e.g., col. 2, ll. 11-67, and col. 4, l. 43 to col. 5, l. 59.
We find Ballance would have disclosed to one of ordinary skill in this
art, as illustrated by embodiments depicted in Figures 5 and 8, a multi-zone
gas flow control showerhead 100 with multiple gas injection holes, for a
process chamber of a rapid thermal processing system for film deposition.
Balance, e.g., col. 1, ll. 7-26, col. 2, l. 49 to col. 3, l. 11, col. 3, l. 38 to
col. 4, l. 10, col. 5, l. 11 to col. 7, l. 10, and Figs. 1 and 4. In Figure 5,
showerhead 100 is in fluid communication with a gas source which delivers
gas to inner hole array 102 through inlet port 103 and a second gas source
delivers gas to outer hole array 104 through inlet port 105, that makes it
“possible to independently control the flow rates through the two gas
distribution hole arrays and thereby have greater control over the contour of
the gas flow distribution over the surface of the substrate.” Balance col. 7,
ll. 10-24.
Ballance discloses in Figure 8, showerhead 300 having a common gas
supply line from gas supply 314 in fluid communication with gas line 312
having flow controller 318 for central circular chamber 308 and with gas
line 310 having flow controller 316 for annular outer chamber 306. The gas
supply 314 is “pressurized gas . . . (or gases)” and flow controllers 316, 318
are “programmably controlled.” Balance, col. 8, ll. 34-53. “[W]ith a dual
zone showerhead (or a multi-zone showerhead) it will be possible to reduce
the pressure of the gas supplied to the center holes as compared to the outer
holes.” Balance, col. 3, ll. 10-15.
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We find Powell would have disclosed to one of ordinary skill in this
art that an electrically conducting shield on the side surfaces of an injector
minimizes plasma ignition. Powell, e.g. col. 9, ll. 33-50, and Fig. 5; see also
col. 7, l. 57 to col. 9, l. 20.
We determine the Examiner’s findings of fact and conclusions of
prima facie obviousness of claims 1, 7, 15, and 51 are adequately supported
by the evidence in the combined teachings of Ni, Chang, Murugesh, Arami,
Goodyear, and Balance, with respect to claims 1, 7, and 51, and as further
combined with Powell, with respect to claim 15. Ans. 7-12.
Thus, we reconsidered the record as a whole in light of Appellants’
contentions, including the evidence in the Cooperberg Declaration, and are
of the opinion that Appellants have not successfully shown that the
combined teachings of Ni, Chang, Murugesh, Arami, Goodyear, and Balance
and as further combined with Powell would not have disclosed a plasma
processing system as claimed to one of ordinary skill in this art.
Considering first, the teachings of the references, we cannot subscribe
to Appellants’ apparent contention that the teachings of Ni are limited to the
injector embodiments depicted in Figures 1 and 3a-c in view of the teachings
of Ni as a whole. App. Br., e.g., 17, 21, and 24; Reply Br., e.g.,
3 and 4. See, e.g., In re Lamberti, 545 F.2d 747, 750 (CCPA 1976) (“[T]he
fact that a specific [embodiment] is taught to be preferred is not controlling,
since all disclosures of the prior art, including unpreferred embodiments,
must be considered.”). We determine one of ordinary skill in this art would
have reasonably inferred from the description of Figure 3a and other
disclosure in Ni, that injectors 22 illustrated in Figures 1 and 3a-c have
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off-axis outlets adjacent the periphery of the axial end surface, and do not
have a central on-axis gas outlet. See above pp. 8-11. However, Ni teaches
that suitable injectors can contain an on-axis gas outlet in the axial end
surface and contain off-axis gas outlets in the side surfaces, and the off-axis
gas outlets can inject gas at an acute angle relative to a plane parallel to an
exposed surface of a substrate, as claimed in claim 1. See above pp. 8-10.
Indeed, there is no disclosure in Ni limiting the off-axis outlets to the axial
end surface of the injector as Ni discloses that the off-axis outlets can be on
the sided of the injector. See above pp. 9-10 (Ni 14:3-15). In this respect,
we further determine Ni’s disclosure that the distal end of the injector should
have no sharp corners would have led this person to use a conical shaped
injector in place of the cylindrical shaped injector having an angle formed
between the sides and the distal end, thus meeting this limitation of claim 7
as we interpreted this claim above. See above pp. 8 and 11.
We agree with Appellants that in Ni’s injector, gas is supplied to all
outlets from a central bore, that is, central passage, as illustrated in Figures
3a-c, which is in fluid communication via a single line to a gas supply, as
illustrated in Figure 1. See above p. 8; App. Br., e.g., 17. We disagree with
Appellants’ contentions that one of ordinary skill in this art routinely
following the combined teachings of Ni, Chang, Murugesh, Arami,
Goodyear, and Balance would not have modified Ni’s injector by separating
the gas supply to the gas outlets such that the on-axis outlet receives process
gas from a center passage in the injector which is in fluid communication
with a first gas line of a common gas supply; the off-axis outlets receive
process gas from an annular passage surrounding a central passage that is in
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Application 10/024,208
fluid communication with a second gas line of that gas supply; and the gas
lines have flow controllers to independently vary the flow rate through the
gas lines, as claimed in claims 1 and 7.
Appellants do not dispute that each of Chang and Murugesh discloses
cylindrical injectors in which a center passage connects a gas supply with an
on-axis outlet and an annular passage connects a different gas supply with
off-axis outlets, and that the flow of gas in each of the lines supplying the
different gases to the respective outlets is independently controlled by flow
controllers. See above 11-13; Ans. 8-9. Indeed, Appellants merely point out
that these references supply different gas to each of the passages, and thus
not the same gas from a common gas supply. App. Br. 18-19 and
25-27; Reply Br. 4-5.
Appellants also do not dispute that each of Arami, Goodyear, and
Balance disclose a shower head injector separated into two or three
chambers, each of which is in fluid communication with a gas line having a
flow controller that regulates the gas flow for that line, or that each of
Goodyear and Balance discloses that the gas lines for the chambers of the
shower head injectors are connected to a gas source that supplies the same
gas. See above pp. 13-15; App. Br., e.g., 19-20, 29-30, and 32. Contrary to
Appellants’ contentions, we agree with the Examiner that Arami would have
disclosed to one of ordinary skill in this art that the gas lines for the
chambers of the shower head injector are connected to gas sources that can
supply the same gas using the flow controllers. See above p. 13; Ans. 9;
App. Br. 20 and 32-33.
18
Appeal No. 2008-6350
Application 10/024,208
Turning now to Appellants’ contentions that a prima facie case has not
been established by the evidence in the applied references, we agree with
Appellants that one of ordinary skill in this art would find in Ni the
teachings that the outlets of the injector are arranged, as stated by Ni, “to
provide desired gas distribution in a particular substrate processing regime.”
See above p. 9; App. Br., e.g., 14-15 and 22-24, citing Cooperberg
Declaration ¶¶ 3, 5, and 6. However, contrary to Appellants’ contentions,
we are of the opinion that Ni’s disclosure of different arrangements of on-
and off-axis gas outlets for aluminum (all off-axis outlets) and polysilicon
(one on-axis outlet and remainder off-axis outlets) etch processes in order to
provide the desired gas distribution for the processes, would have reasonably
suggested to one of ordinary skill in this art that the capability to close off
the on-axis gas outlet in the axial end of an injector would result in an
injector that can provide desired gas distribution for both aluminum and
polysilicon etch processes. See above pp. 9-10.
Indeed, this person would have been armed with the knowledge in the
art that an injector can be divided into passages or chambers in order to
regulate gas flow and the composition of that gas in providing the desired
gas to outlets of the injector as evidenced by Chang, Murugesh, Arami,
Goodyear, and Balance. See above pp. 11-15. Thus, this person would have
readily recognized that a change in the structure of Ni’s injector using
separate passages or chambers to control the flow of gas to different gas
outlets, as known in the art, would facilitate separate control of the on- and
off-axis gas outlets in Ni’s injector, thereby permitting the modified injector
to be used in different etch processes. See, e.g., KSR Int'l Co. v. Teleflex
19
Appeal No. 2008-6350
Application 10/024,208
Inc., 127 S.Ct. 1727, 1740 (2007) (“[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.”); In re
Keller, 642 F.2d 413, 425 (CCPA 1981)((“[T]he test [for obviousness] is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art.”); In re Sovish, 769 F.2d 738, 743 (Fed.
Cir. 1985) (skill is presumed on the part of one of ordinary skill in the art);
see also In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988) (“For
obviousness under § 103, all that is required is a reasonable expectation of
success.” (citations omitted)).
In this respect, there is little support in the record for Appellants’
contention that the problem addressed by the claimed injector is one of
providing an “etch uniformity in different etch steps of a multi-step etch
process” which would not have been recognized by one of ordinary skill in
this art. App. Br., e.g., 13-16, 21-24, and 38-39, citing Cooperberg
Declaration ¶¶ 3-6. Indeed, one of ordinary skill in this art would have
required only the simple observation of the difference between Ni’s injectors
for etching aluminum and polysilicon to recognize that the problem with
using the same injector in these different etching processes is the presence
and absence of an on-axis gas outlet in the axial end. Thus, this person
would have reasonably concluded that control of the on-axis gas outlet
would permit use of the same injector in both etching processes. See, e.g., In
re Ludwig, 353 F.2d 241, 242-43 (CCPA 1965) (if only simple observation
20
Appeal No. 2008-6350
Application 10/024,208
is required to ascertain a problem, the recognition of such problem is well
within the ordinary skill in the art); In re Goodman,
339 F.2d 228, 232-33 (CCPA 1964) (“The problem solved by appellants, if
not specifically pointed out by the prior art, was at least an obvious one. The
means of solving the problem were clearly suggested by the prior art.”).
We further cannot agree with Appellants that the teachings of Ni
would have led one of ordinary skill in this art away from considering the
showerhead injector art set forth in Arami, Goodyear, and Balance, or that
the teachings of Goodyear would have led this person away from using a
common gas supply. App. Br. 27-28 and 30-32; Reply Br. 6-8. “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, 552-53 (Fed. Cir.
1994). In other words, a prior art disclosure does not teach away if the
“disclosure does not criticize, discredit, or otherwise discourage the solution
claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
In this respect, we find no evidence in Ni that the disclosure “instead
of using a gas ring or showerhead to supply process gas into the chamber,
the gas injector is mounted in an opening through the dielectric window,”
establishes one of ordinary skill in this art would have been discouraged
from considering showerhead injectors having a plurality of chambers for
independent control of gas flow in modifying Ni’s injector, as Appellants
contend. App. Br. 27-28, citing Ni 9:13-15. Indeed, the statement is made
with respect to the modification of a particular plasma etch reactor made by
21
Appeal No. 2008-6350
Application 10/024,208
LAM Research Corporation to demonstrate Ni’s injector, and thus does not
constitute a preference for any particular injector. Ni 9:9-13.
We are also unpersuaded of a “teaching away” from a common gas
supply by the disclosure of a problem with depletion of one of the reaction
gases delivered through a showerhead injector. App. Br. 30-32, citing
Goodyear, col. 4, ll. 48-56, and Cooperberg Declaration ¶ 12; Reply Br. 6-8;
see above pp. 13-14. Goodyear’s disclosed solution to this problem is
adjustment of the gases supplied to the injector, and thus a process
adjustment. See above p. 14. Indeed, we find that the disclosed solution is a
gas supply structure, the disclosure of which would have led one of ordinary
skill in this art to the reasonable inference that the process gas supplied to
each of areas 12a, 12b of the showerhead injector can be of the same
composition. Id.
In this respect, Appellants acknowledge that Goodyear evinces that a
similar plasma processing system in which the two chambers of the
showerhead injector are in fluid communication with the same gas supply
was known in the art. App. Br. 19, citing Goodyear, col. 1, ll. 20-53; see
above pp. 13-14; cf., e.g., In re Hedges, 783 F.2d 1038, 1039-40 (Fed. Cir.
1986).7 Arami and Balance also disclosed such compartmentalized

7 “In Hedges’ case, the Solicitor referred to new portions of the references
cited by Hedges during examination for further support of the same rejection
that had been upheld by the Board. Hedges had relied on these references
before the Board, as he does before us, for his argument that viewed as a
whole the body of the prior art teaches away from conducting this reaction at
high temperatures. The Solicitor should not be constrained from pointing to
other portions of these same references in contravention of Hedges’
position.” Hedges, 783 F.2d at 1039-40.
22
Appeal No. 2008-6350
Application 10/024,208
showerhead injectors as we have discussed above. See above pp. 13 and 15.
Thus, one of ordinary skill in this art, armed with the knowledge in the art
that an injector can be divided into chambers in order to regulate gas flow
and composition as evidenced by Chang, Murugesh, Arami, Goodyear, and
Balance, would not have been led away from using the concept of a
showerhead injector having a plurality of chambers for independent control
of gas flow taught by Arami, Goodyear, and Balance by Goodyear’s
disclosure cited by Appellants. See, e.g., Gurley, 27 F.3d at 553 (“We share
Gurley’s view that a person seeking to improve the art of flexible circuit
boards, on learning from Yamaguchi that epoxy was inferior to polyester-
imide resins, might well be led to search beyond epoxy for improved
products. However, Yamaguchi also teaches that epoxy is usable and has
been used for Gurley’s purpose.”).
Appellants also contend that one of ordinary skill in the art would not
have looked to showerhead injector design with respect to construction and
performance when used in RF capacitively-coupled plasma reactors in
modifying Ni’s injector for used in an RF inductively-coupled plasma
processing system. App. Br. 28-30 and 33. In this respect, Appellants point
to, among other things, the number and position of the gas outlets in the
injector. App. Br. 28. In this respect, Appellants further point out that
Declarant Cooperberg's opinion that one of ordinary skill in the art “would
not have selected references in the showerhead electrode art to modify the Ni
gas injector, which is used in an ICP system,” “is based on well-known
differences in the art and reflects the knowledge in the art.” App. Br. 28-29,
citing Cooperberg Declaration ¶ 13.
23
Appeal No. 2008-6350
Application 10/024,208
We find that Declarant Cooperberg states, among other things, that
“[r]egarding gas flow, because a showerhead includes many holes, the gas
exit velocity is normally sufficiently low,” and that “[t]he higher flow rate
from a smaller number of holes for the claimed gas injector allows for more
controlled directivity from the injector.” Cooperberg Declaration ¶ 13.
We disagree with Appellants’ position. We determine that one of
ordinary skill in this art would have had knowledge that the flow of gas to
outlets of an injector can be regulated by dividing the injector into chambers
in order to regulate gas flow and composition as evidenced by Chang,
Murugesh, Arami, Goodyear, and Balance. Each of these references would
have disclosed that the gas flow to the outlets of an injector is regulated by
compartmentalizing the injector into passages or chambers, each in
communication with a gas source via a gas line having a flow controller.
See above pp. 11-15. Indeed, the disclosure of Chang and Murugesh in this
respect is essentially the same as that of Arami, Goodyear, and Balance.
Thus, the structure of an injector considered by one of ordinary skill, in
addressing the problem of control of gas to the outlets of an injector, would
have been determined by the injector structure and not by the type of
processing system in which the injector is used or the arrangement of the
outlets. The testimonial evidence we find in ¶ 13 of the Cooperberg
Declaration directed to gas flow rate is with respect to the injection of gas
from a gas outlet of the injector and not with control of the flow of gas to
that gas outlet with respect to gas distribution to the outlets of an injector,
and thus, is not directed to the approach of one of ordinary skill in this art to
that problem.
24
Appeal No. 2008-6350
Application 10/024,208
Appellants’ sole contention with respect to claim 51 is that the
combined teachings of the applied references do not teach the claim
limitation “the common gas supply is a gas mixture.” App. Br. 42. We
determined above that this claim language does not express a structural
limitation of the claimed plasma processing system. See above pp. 6-7. In
any event, Appellants do not point out why the gas supply systems of the
applied references are incapable of supplying a gas mixture.
Appellants merely contend with respect to claim 15 that Powell “fails
to cure the . . . deficiencies of Ni” or otherwise disclose limitations specified
in claim 1. App. Br. 42-43. This argument does not address the manner in
which Powell was combined with the other references.
Appellants have not successfully shown that the combined teaching of
the applied references would not have disclosed a plasma processing system
as claimed to one of ordinary skill in this art, and thus, we now consider the
evidence in the Specification and the Cooperberg Declaration as argued in
the Briefs.
We find Declarant Cooperberg states “Examples at [Specification]
pages 19-21 . . . demonstrate superior process results . . . can be provided by
the claimed plasma processing system.” Decl. ¶ 8. The plasma processing
system used in the Examples is generally described. Id. Examples 1
through 5 are reported at Specification pages 19-21. Declarant Cooperberg
sets forth a table showing test reports for Examples 1 to 3. Decl. ¶ 8. The
processes in Examples 1-3 are “polysilicon etch,” “silicon etch,” and
“polysilicon gate etch,” respectively. Id. Declarant Cooperberg provides no
results for or otherwise describes Specification Examples 4 and 5. Id.
25
Appeal No. 2008-6350
Application 10/024,208
Declarant Cooperberg states:
The test results . . . in Table 1 indicate that the best results were
achieved in the polysilicon etch process of Example 1 using a
mixed gas flow, while the best results were achieved in the
silicon etch process of Example 2 and the polysilicon gate etch
process of Example 3 using a predominately off-axis gas flow. .
. . These test results demonstrate that the claimed plasma
processing system, which allows the gas flow ratio between the
on-axis and off-axis outlets to be changed for different steps of
a multi-step process, can thus provide optimized process
uniformity for each such step of a multi-step process,
Decl. 9.
Declarant Cooperberg further testifies:
In contrast, because the Ni gas injector shown in Figures 1 and
3A-3C does not allow the gas flow ratio between the on-axis
and off-axis outlets to be changed for different steps of a multi-
step process, it cannot meet uniformity or customer standards
for certain multi-step processes. For example, while the Ni
injector can be designed to provide a mixed gas flow ratio that
provides the results achieved in the process of Example 1, that
same Ni gas injector would not be able to also provide
optimized process results for the processes of Examples 2 and
3, for which predominately off-axis flow conditions provided
the best process uniformity.
Decl. 10.
Declarant Cooperberg testifies:
The Examples demonstrate that the particular flow ratio of the
gas flows provided from the on-axis and off-axis gas outlets,
i.e., predominately off-axis flow, predominately on-axis flow,
or mixed on-axis and off-axis flow, that provides the most
desirable results for a given step of a multi-step etch process . . .
can be substantially different from the flow ratio of the gas
flows that provides the most desirable plasma etch results for a
different step of the multi-step process. For this reason, the Ni
gas injector shown in Figure 1 and Figures 3A-3C is impractical
26
Appeal No. 2008-6350
Application 10/024,208
for use in a plasma processing chamber for a multi-step etch
process.
Decl. 11.
Appellants contend the evidence demonstrates “the existence of the
problem of achieving, with a single injector, optimized process uniformity in
a multi-step process that requires different gas flow ratios for different steps
of the process, and that the claimed subject matter provides a solution to this
problem” when compared with the injectors illustrated in Ni’s Figures 1 and
3a-c. App. Br. 34-35, citing “Examples described at pages 19-21 of the
present application” and Cooperberg Declaration ¶¶ 8-11. Appellants
contend the results of the Specification Examples at pages 19-21 establish
that the Ni “cannot provide adjustable, multi-zone gas flow via on-axis and
off-axis gas outlets of the gas injector, and thus does not allow the gas flow
ratio between the on-axis and off-axis outlets . . . .” App. Br.
34-35 (original emphasis deleted). Appellants contend “[t]he comparative
test results . . . provide evidence that the Ni gas injector shown in Figures
1 and 3A-3C, which cannot change the gas flow ratio between its on-axis
and off-axis outlets, cannot provide optimized process uniformity for
process steps of a multi-step process,” and thus even if Ni’s injector can
provide optimized results for the process of Example 1, that injector could
not provide optimized results for the processes of Examples 2 and 3. App.
Br. 35-37.
Appellants contend the results obtained with the claimed injector
would not have been expected from the modification of Ni’s injector by the
teachings of the other applied art because “showerhead electrodes and gas
injectors have very different structures and performance characteristics with
27
Appeal No. 2008-6350
Application 10/024,208
respect to the gas flow they provide.” App. Br. 37. Appellants further
contend the applied references do not suggest “the improved etch uniformity
for multi-step etch processes . . . provided by the claimed gas injection
system.” App. Br. 37-38; Reply Br. 2-3.
We discussed above that one of ordinary skill in this art would have
recognized from Ni’s disclosure that control of the gas supply to the on-axis
outlet of the injector can result in an injector useful in etching both
aluminum (8 off-axis outlets) and polysilicon (1 on-axis outlet, 8 off-axis
outlets) by providing the desired gas distribution with respect to the plasma
and the substrate for each of the processes. See above, e.g., pp. 9-10 and 20-
21. We also discussed above that the injector of Ni’s Figures 1 and 3a-c has
only off-axis outlets, Ni’s disclosure is not limited to this injector, and that
gas is supplied to the outlets of these injectors by a central bore. See above,
e.g., pp. 8-11 and 16-17.
On this record, we find that the evidence of record as argued by
Appellants does no more than show what one of ordinary skill in the art,
armed with the knowledge in the art, would have reasonably determined
from consideration of the combined teachings of Ni, Chang, Murugesh,
Arami, Goodyear, and Balance, and thus the results reported by Declarant
Cooperberg are not unexpected, as the Examiner points out. Ans. 19,
cf., e.g., In re Skoll, 523 F.2d 1392, 1397 (CCPA 1975) (reference suggested
the desirability of substituting reagent for that used in the process of another
reference); In re Gershon, 372 F.2d 535, 537-39 (CCPA 1967) (references
teach the superiority of using a reagent for a particular purpose). Indeed, the
on- and off-axis gas distribution with the claimed injector in the different
28
Appeal No. 2008-6350
Application 10/024,208
silicon and polysilicon etch processes reported by Declarant Cooperberg is
similar to gas distribution provided by the on- and off-axis gas outlets with
respect to the plasma and the substrate disclosed by Ni for separate injectors
used in the respective polysilicon and aluminum etch processes. We
determine one of ordinary skill in this art would have reasonably expected
that differences in on- and off-axis gas distribution can be obtained by
modifying Ni’s injector with separate gas passages or chambers for the on-
and off-axis outlets, particularly in view of the teachings of Chang,
Murugesh, Arami, Goodyear, and Balance. Indeed, these references disclose
that more uniform results are obtained with greater control of the gas
distribution through the use of separate gas passages to outlets in different
areas of the injection. See above pp. 11-15.
Thus, while the combined teachings of the applied references do not
expressly teach the results obtained in Specification Examples 1-3 as further
reported by Declarant Cooperberg, we determine the same were obtained by
routine optimization of the operation of a plasma processing system as a
whole as taught by the references which is within the ordinary skill in the
art, and not merely the injector. Thus, on this record, the results reported are
not unexpected. Indeed, neither Appellants nor Declarant Cooperberg
establish that the reported results would have been unexpected by one of
ordinary skill in this art given the combined teachings of the applied
references. See, e.g., Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed.
Cir. 2007) (“[B]y definition, any superior property must be unexpected to be
considered as evidence of non-obviousness.” (citations omitted)); In re
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Appeal No. 2008-6350
Application 10/024,208
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re Merck, 800 F.2d 1091,
1099 (Fed. Cir. 1986); In re Longi, 759 F.2d 887, 897 (Fed. Cir. 1985);
In re Lindner, 457 F.2d 506, 508 (CCPA 1972); In re Klosak, 455 F.2d
1077, 1080 (CCPA 1972); In re D’Ancicco, 439 F.2d 1244, 1248 (CCPA
1971).
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Ni, Chang, Murugesh, Arami, Goodyear, and Balance
and as further combined with Powell, with Appellants’ countervailing
evidence of and argument for nonobviousness, and conclude, by a
preponderance of the evidence and weight of argument, that the claimed
invention encompassed by appealed claims 1 through 11,
13 through 15, and 39 through 61 would have been obvious as a matter of
law under 35 U.S.C. § 103(a).
The Primary Examiner’s decision is affirmed.
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

cam

PETER K. SKIFF
BURNS, DOAN, SWECKER & MATHIS, L.L.P.
P.O. BOX 1404
ALEXANDRIA, VA 22313-1404
30