Ex Parte Grace et al

Board of Patent Appeals and Interferences

May 22, 2008

10352558 (B.P.A.I. May. 22, 2008)

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:

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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

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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.
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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
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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
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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
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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
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Application 10/352,558

THOMAS H. CLOSE
PATENT LEGAL STAFF
EASTMAN KODAK COMPANY
343 STATE STREET
ROCHESTER, NY 14650-2201
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