Ex Parte Findikoglu

Board of Patent Appeals and Interferences

Feb 29, 2012

11923232 (B.P.A.I. Feb. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/923,232 10/24/2007 Alp T. FINDIKOGLU S-109,160 9246
35068 7590 03/01/2012
LOS ALAMOS NATIONAL SECURITY, LLC
LOS ALAMOS NATIONAL LABORATORY
PPO. BOX 1663, LC/IP, MS A187
LOS ALAMOS, NM 87545
EXAMINER
LANGMAN, JONATHAN C
ART UNIT PAPER NUMBER
1784
MAIL DATE DELIVERY MODE
03/01/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte Los Alamos National Security, LLC
__________

Appeal 2011-006605
Application 11/923,232
Technology Center 1700
___________

Before FRED E. McKELVEY, RICHARD E. SCHAFER, and
RICHARD TORCZON, Administrative Patent Judges.

SCHAFER, Administrative Patent Judge.
DECISION ON APPEAL
Los Alamos National Security, LLC (Applicant), appeals from an
examiner’s final rejection rejections of Claims 11-13 and 16-19. 35 U.S.C. §§ 6
and 134. We affirm.
The Claimed Subject Matter
The claims are directed to a template structure. A template structure
provides a foundation for the growth of an epitaxial layer. The claimed structure is
a stack having three required layers: (1) the base or substrate layer, (2) a nucleation
layer and (3) a textured biaxial layer. The biaxial layer provides the template for
the growth of an epitaxial layer.
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Application 11/923, 232

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The base layer may be made of a variety of materials. Applicant’s
specification mentions the following examples: Hastelloy, glass, stainless steel,
Ni, Ni-alloy, Fe-alloy, Cu, and polyimide. Written Description, p. 11, ¶ 28. The
base layer must also have a “rough surface.” Claim 11.
The intermediate or nucleation layer must be amorphous and include silicon
nitride, silicon oxide, or silicon oxynitride. Written Description, p. 7, ¶ 18. The
amorphous layer must be sufficiently thick to “smooth over” the rough surface of
the substrate and act as a diffusion barrier. Written Description, p. 10, ¶ 27. The
appropriate thickness is 5-500 nanometers (nm). Written Description, p. 15, ¶ 41.
In a specific embodiment, the nucleation layer is amorphous silicon nitride that has
a thickness of 10-160 nm. Written Description, p. 8, ¶ 22.
The third layer is crystalline, i.e. it has an ordered or textured arrangement of
atoms or molecules making up the layer. Written Description, p. 13, ¶ 36.
Applicant identifies MgO and TiN as suitable materials for the crystalline layer.
Written Description, p. 8, ¶ 22. Applicant describes using “ion beam assisted
deposition” (IBAD) to deposit the MgO and TiN layers. Id.
Applicant notes that the use of the IBAD to apply the crystalline MgO or
TiN layer directly to the base layer had been limited where the base layer had a
rough surface:
[P]revious methods have not allowed for a sufficient layer to be
applied having a sufficient thickness to correct for any
substrates having a rough surface or for substrates that are
amorphous such as glass. Therefore, this limitation has
prevented the effective use of the IBAD process on amorphous
substrates or substrates that have a rougher surface.
Written Description, ¶ 10. Applicant says that the use of an intermediate
amorphous silicon nitride, silicon oxide or silicon oxynitride layer cures
this problem, allowing IBAD to be used with rougher base layers:
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Application 11/923, 232

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In using this silicon oxide or silicon [nitride] (or, silicon-
oxynitride) layer, the IBAD process can be performed on not-
as-well polished copper, stainless steel, Ni-alloy, etc. So it's an
improvement over prior art in the sense that now the same
process can be performed on a wider range of substrates.
Written Description, ¶ 25.
Claim 11, the sole independent claim, is representative and reproduced
below:
11. A template structure where said structure comprising:
a substrate having a rough surface;
a nucleation layer directly on the rough surface of the
substrate,
the nucleation layer comprising an amorphous silicon
film selected from the group consisting of silicon oxide, silicon
nitride and silicon oxynitride,
the nucleation layer having a thickness sufficient to
smooth over the rough surface and also act as an effective
diffusion barrier; and
directly on the nucleation layer a highly crystalline
template having a biaxially oriented texture transforming the
surface into a highly oriented surface.
The Rejections
The examiner entered three rejections, each relying on a patent to Do1:
(1) Claims 11-13 and 16-18 as unpatentable under 35 U.S.C. § 102(b) as
anticipated by the Do patent with the Groves2 publication relied upon with respect
to the meaning of “rough surface”; (2) Claim 17 under 35 U.S.C. 103(a) as
unpatentable over the Do patent alone or combined with the teachings of the

1 U.S. Patent 6,190,752
2 U.S. Patent Application Publication 2005/0205014
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Application 11/923, 232

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Findikoglu3 publication; and (3) Claim 16-19 under § 103(a) as upatentable over
the combined teachings of the Do patent and the Foltyn4 publication.
The Do Patent
Do teaches a three-layer stack to be used as a foundation for depositing an
epitaxial layer. Do, 2:33-41. The structure is illustrated in Do’s Figure 2 below:
Do teaches that the base 13 may be single crystal or multicrystalline
materials. Do, 4:17-20, 3:15-17; 6:51-54, 7:36-38 (Claim 4), 8:40-42), 9: 18-20
(Claim 37) and 10:31-33 (Claim 55). Exemplary materials for the base 13 include
multicrystalline nickel alloys such as Hastelloy (Do, 3:25-28).
The intermediate layer, identified by numeral 12 in the drawing, is an
amorphous layer. Do, 4:17-20. The layer may be amorphous Si3N4, SiO2, or SiN.
Do, 4:17-20; 6:49-54; 6:58-59. In Applicant’s terminology this is a nucleation
layer.

3 U.S. Patent Application Publication 2006/0115964
4 U.S. Patent Application Publication 2006/0141291
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The third layer 16 is a textured layer of MgO or other materials having a
“rock salt-like” crystal structure.5 Do, 4:11-16. Rock salt-like materials are said to
include TiN. Do, 1:51-58. The textured layer is deposited using an IBAD process.
Do, 4:11-16.
Do describes four examples of structured templates having a Hastelloy base,
a Si3N4 amorphous layer and an MgO textured IBAD layer. Do, 6:12-31. The
amorphous Si3Ni4 layer is deposited onto the Hastelloy. The thickness of the
Si3Ni4 in the examples is reported as 100, 200 and 400nm.6 Do, 6:12-32 and Table
1, Samples 1 and 3-5. MgO is then deposited onto the Si3Ni4 using IBAD. Do,
6:6-14. The Hastelloy base in the examples is characterized as “less-polished” for
Examples 1 and 3 and “well-polished” for Examples 4 and 5.
Analysis
Independent Claim 11
Do describes layered template structures having three layers: (1) a Hastelloy
base, (2) a Si3N4 amorphous layer and (3) an MgO textured layer applied using
IBAD. Do’s examples teach amorphous layers of 100, 200 and 400 nm thickness.
Do, Table 1, Samples 1 and 3-5. Applicant teaches that the appropriate thickness
of the amorphous layer 5-500nm. Written Description, ¶ 41. One of Applicant’s
specific embodiments uses a layer of amorphous silicon nitride of 10-160 nm.
Written Description, ¶ 22. Do does not express any concerns relating to the

5 Do defines “rock salt-like material:”
By "rock-salt-like material" is meant a material with a crystalline structure
with atomic arrangements identical to or similar to that in rock-salt, such
as cubic structures with (100) close-packed planes or cubic structures in
which a part of the lattice (some planes) has the same atomic arrangement
as in rock-salt.
Do, 1:58-63.
6 Do reports the thickness in as 1000, 2000 and 4000 Å which convert to 100, 200 and 400 nm,
respectively.
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Application 11/923, 232

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roughness of the base layer and provides examples showing the formation of
structured templates on both “more polished” and “less polished” Hastelloy base
layers. Do, 6:12-32 and Table 1, Samples 1 and 3-5. Except for the
characterization of the base layer as having a “rough surface,” Do’s patent
expressly describes textured structures falling within the scope of Claim 11.
Applicant argues that the characterization of the base layer as having a
“rough surface” distinguishes the claimed template structures from Do’s. Brief, 5.
Applicant has neither directed us to a definition of “rough surface” in its written
description nor directed us to the portions of the record showing that the phrase has
an established meaning in the art.
Applicant specifically argues to the effect that “rough surface” means
“unpolished surface.” Brief, 6. Applicant’s written description, however, says
something different:
In using this silicon oxide or silicon [nitride] (or, silicon-
oxynitride) layer, the IBAD process can be performed on not-
as-well polished copper, stainless steel, Ni-alloy, etc.
Written Description, ¶ 25 (emphasis added). We have not been directed to
anything in the record that distinguishes Applicant’s “not-as-well polished”
Hastelloy layer from Do’s “less polished” Hastelloy layer. We disagree with
applicant’s statement that “Appellant never mentions polishing the substrate.”
Brief, 6.
Additionally, any increased ability to apply MgO or TiN using IBAD is a
characteristic resulting from the placement of an amorphous layer between the base
layer and the IBAD layer. As noted by Applicant:
In using this silicon oxide or silicon [nitride] (or, silicon-
oxynitride) layer, the IBAD process can be performed on
not-as-well polished copper, stainless steel, Ni-alloy, etc. So
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Application 11/923, 232

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it's an improvement over prior art in the sense that now the
same process can be performed on a wider range of substrates.
Written Description, ¶ 25 (emphasis added). The discovery of a new characteristic
of an old product does not create a new product for the purpose of anticipation.
Harris Corp. v. IXYS Corp., 114 F.3d 1149, 1153 (Fed. Cir. 1997); In re Spada,
911 F.2d 705, 708, (Fed. Cir. 1990); Titanium Metals Corp. of Am. v. Banner,
778 F.2d 775, 780-82 (Fed. Cir. 1985).
Do anticipates the subject matter of Claim 11.7
Claims 12-13 and 16-19
Claims 12-13 and 16-19 depend from Claim 11. With respect to the
dependent claims, Applicant does not present arguments different from the
arguments made for Claim 11. Applicant relies on the same “rough surface”
argument as for Claim 11 and does not challenge the Examiner’s reliance on the
teachings of Groves, Findikoglu and Foltyn. Brief, p. 6, last paragraph; p. 7, last
paragraph; p. 8, fourth paragraph. We therefore select Claim 11 as representative
for the purposes of this appeal. 37 CFR § 41.37(c)(1)(vii). We affirm the
rejections of Claim 12-13 and 16-19 for the reasons stated with respect to
Claim 11.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

lb

7 Applicant has not challenged the Examiner’s reliance on Groves. It is unnecessary, therefore,
for us to address that reference.