Ex Parte Grace et alDownload PDFBoard of Patent Appeals and InterferencesMay 22, 200810352558 (B.P.A.I. May. 22, 2008) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JEREMY M. GRACE, DENNIS R. FREEMAN, NEIL REDDEN, JUSTIN H. KLUG, and STEVEN A. VAN SLYKE ____________ Appeal 2008-2999 Application 10/352,558 Technology Center 1700 ____________ Decided: May 22, 2008 ____________ Before EDWARD C. KIMLIN, CHUNG K. PAK, and CHARLES F. WARREN, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 2-9. Claim 2 is illustrative: Appeal 2008-2999 Application 10/352,558 2. A system for thermal physical vapor deposition, comprising: a) a material to be deposited on a substrate or structure; b) an elongated container containing the material in unvaporized form, the container having a conductance CB in the elongated direction at an internal operating pressure P; B c) a heater heating the material in the container to vaporize the material to a partial pressure Pm; d) the container defining one or more apertures emitting the vaporized material in an elongated pattern in the elongated direction, all of the apertures defined by said container having a combined conductance CA at internal operating pressure P, wherein e) a means providing relative motion of the substrate or structure and elongated container in a direction substantially perpendicular to the elongated direction. The Examiner relies upon the following references as evidence of obviousness: Steube 4,233,937 Nov. 18, 1980 Soden 5,532,102 Jul. 2, 1996 Ward 5,596,673 Jan. 21, 1997 Powell 6,037,241 Mar. 14, 2000 Ballance 6,090,210 Jul. 18, 2000 Spahn 6,237,529 B1 May 29, 2001 Yamazaki US 2001/0006827 A1 Jul. 5, 2001 Van Slyke ('969) EP 1 254 969 A1 Nov. 6, 2002 Van Slyke ('140) US 2003/0015140 A1 Jan. 23, 2003 Eser 6,562,405 B2 May 13, 2003 Kim 6,650,023 B2 Nov. 18, 2003 2 Appeal 2008-2999 Application 10/352,558 Appellants' claimed invention is directed to a system for the thermal physical vapor deposition of a material on a substrate. The system is defined as an apparatus comprising an elongated container for the material in its unvaporized form, a heater for vaporizing the material, and means for providing relative motion between the substrate and the elongated container in a direction that is substantially perpendicular to the elongated direction. The container defines one or more apertures which emit the vaporized material. The claims specify that the system is capable of attaining the recited ratio for the conductance of the apertures and conductance of the container at an unspecified operating pressure. The appealed claims stand rejected under 35 U.S.C. § 103(a) as follows: a) claims 2-5, 8, and 9 over Van Slyke '140 or van Slyke '969 in view of Soden and Eser, b) claims 2-4, 8, and 9 over Kim in view of Soden and Eser, c) claim 5 over Kim in view of Soden, Eser, Steube, Van Slyke '140 and Van Slyke '969, d) claims 2-4, 8, and 9 over Yamazaki in view of Spahn, Soden, Ward, and Eser. e) claim 5 over Yamazaki in view of Spahn, Soden, Ward, Eser, Steube, Van Slyke '140 or Van Slyke '969, and f) claims 2-4 and 6-9 over Powell in view of Eser and Ballance. Appellants have not separately argued any particular claim on appeal. Accordingly, all the appealed claims stand or fall together with claim 2. 3 Appeal 2008-2999 Application 10/352,558 We have thoroughly reviewed each of Appellants' arguments for patentability. However, we are in complete agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of § 103 in view of the applied prior art. Accordingly, we will sustain the Examiner's rejections for the reasons set forth in the Answer, which we incorporate herein, and we add the following for emphasis only. At the outset, we note that the Examiner imposed a restriction requirement for claims 2-9, drawn to an apparatus, and claims 1 and 10-20 directed to a method (see the Examiner's Action of Feb. 10, 2005). Appellants elected apparatus claims 2-9 without traverse (see Response of Jan. 18, 2005). Consequently, we will interpret appealed claims 2-9 as defining an apparatus that is recited as a system. Indeed, the claimed system is defined by three apparatus components, namely, an elongated container, a heater, and a means for providing relative motion. The material in the container and the internal operating pressure P do not define any structural features of apparatus within the scope of the appealed claims. We interpret the recited conductance ratio as a function that the claimed apparatus is capable of performing at some unspecified pressure. There is no dispute that the Van Slyke references disclose a thermal physical vapor deposition apparatus for depositing material on a substrate comprising an elongated container for the material in unvaporized form which comprises a plurality of apertures emitting the material in vaporized form, a heater for vaporizing the material, and a means for providing relative motion between the substrate to be coated and the elongated container. As set forth by the Examiner, although the Van Slyke references do not specify 4 Appeal 2008-2999 Application 10/352,558 the dimensions of the container and the apertures, the references depict that the apertures have a much smaller cross-sectional area than the cross- sectional area of the elongated container. It is by now well settled that when a claimed system/apparatus or process reasonably appears to be substantially the same as that disclosed by the prior art, the burden is on the applicant to prove that the prior art apparatus/system or process does not necessarily or inherently possess the characteristics attributed to the claimed apparatus/system or process. In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re Best, 562 F.2d 1252, 1255 (CCPA 1977). In the present case, although the Van Slyke patents disclose apparatus for thermal physical vapor deposition that appear to be substantially the same as apparatus within the scope of the appealed claims, the references do not discuss a ratio of the conductance of the apertures to the conductance of the container. However, based on the close correspondence between the reference and claimed apparatus, and the inability of the USPTO to perform tests on the Van Slyke apparatus, it is eminently fair and reasonable to place on Appellants the burden of establishing that apparatus fairly disclosed by Van Slyke are not capable of attaining the claimed conductance ratio at any operating pressure. We find that this is particularly fair in the present case inasmuch as the instant inventors have the same assignee as the Van Slyke patents. It would seem that it would not be an undue burden on Appellants to place of record the conductance ratios that can be attained by the thermal physical vapor deposition systems of the Van Slyke patents. However, Appellants have not brought to our attention any such evidence. While it may be Appellants' invention that they operate the Van Slyke systems by a 5 Appeal 2008-2999 Application 10/352,558 process that is not disclosed by Van Slyke, the present claims on appeal define an apparatus and not its process of operation. Furthermore, we agree with the Examiner that Soden and Eser establish that the size and geometry of the apertures in thermal physical vapor deposition apparatus of the type disclosed by Van Slyke, and presently claimed, are a result effective variables that are a matter for routine optimization by one of ordinary skill in the art to achieve a uniform deposition on the substrate. Manifestly, the temperature and pressure of the operating system is a parameter that must be taken into consideration when designing the size of the apertures. As pointed out by the Examiner, Soden expressly teaches that the distance between the apertures and the source, and therefore the volume of the container, is a factor in designing the size and number of apertures, "keeping in mind that uniformity of deposition of the migration imaging material is affected by the size and number of apertures" (col. 21, ll. 12-19). Also, Eser evidences that it was known in the art to have a large enough volume above the material to be vaporized in order to increase the lateral vapor flow wherein a high lateral vapor flow conductance beneath the apertures can equilibrate to achieve a uniform deposition (see col. 3, ll. 38-59). Hence, since vapor flow is a function of aperture size, it is clear that it was known in the art that aperture size and vapor flow conductance are result effective variables effecting the uniformity of deposition. Accordingly, to the extent the apparatus of Van Slyke are not capable of obtaining the claimed conductance ratio at any operating pressure, we agree with the Examiner that it would have been obvious for one of ordinary skill in the art to resort to routine optimization to determine the optimum 6 Appeal 2008-2999 Application 10/352,558 conductance ratio. Likewise, the same rationale applies to modifications to the systems of Kim and Powell for obtaining the desired uniform deposition. Also, we find no error in the Examiner's reasoning with respect to the obviousness of providing "an elongated crucible having a cover having apertures in the apparatus of Yamazaki to gain the advantages of uniformity of coating and reduced ejection of particles" (Ans. 11, first para.). In addition, we note the Examiner's citation of Ballance for teaching "that uniformity of gas distribution can be improved in an aperture gas distributor by providing a much higher conductance in the elongated direction relative to the total aperture conductance" (Ans. 13, first para.). As a final point, we observe that Appellants base no argument upon objective evidence of nonobviousness, such as unexpected results. In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner's decision rejecting the appealed claims 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)(effective Sept. 13, 2004). AFFIRMED cam 7 Appeal 2008-2999 Application 10/352,558 THOMAS H. CLOSE PATENT LEGAL STAFF EASTMAN KODAK COMPANY 343 STATE STREET ROCHESTER, NY 14650-2201 8 Copy with citationCopy as parenthetical citation