Ex Parte Grasshoff et al

Board of Patent Appeals and Interferences

Nov 13, 2008

10462932 (B.P.A.I. Nov. 13, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GUNTER GRASSHOFF, CHRISTOPH SCHWAN,
and MATTHIAS SCHALLER
____________

Appeal 2008-2101
Application 10/462,932
Technology Center 1700
____________

Decided: November 13, 2008
____________

Before THOMAS A. WALTZ, PETER F. KRATZ, and
KAREN M. HASTINGS, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 19-28. We have jurisdiction pursuant to
35 U.S.C. § 6.

Appeal 2008-2101
Application 10/462,932

STATEMENT OF THE CASE
Appellants’ claimed invention is directed to a method of controlling
plasma parameters in a production process. Claim 19 is illustrative and
reproduced below:
19.A method of controlling plasma parameters in a production
process, the method comprising:

performing real time measurements relating to at least one
physical or chemical property of a plasma;

using the real time measurements to generate categorized
learning data indicating at least one expected range for process run
data for a plurality of process run data categories, each process run
data category being different in at least one of the product to be
processed in the production process and a process set up condition for
the production process;

receiving process run data during said production process, said
process run data indicating current values of said at least one
parameter;

determining a respective process run data category for the
received process run data; and

controlling said at least one parameter of said production
process based on the received process run data and said learning data
corresponding to the determined process run category.

The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Jahns 5,711,843 Jan. 27, 1998
Cruse US 2001/0051437 Dec. 13, 2001
Shanmugasundram US 7,082,345 Jul. 25, 2006
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Claims 19-28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jahns in view of Shanmugasundram. Claims 19-28 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over Cruse in view
of Shanmugasundram.
Appellants argue the rejected claims together as a group with respect
to both rejections. Accordingly, we select claim 19 as the representative
claim on which we shall decide this appeal.
Appellants’ principal contentions in opposition to the Examiner’s
rejections are that the Examiner erred in each of the stated obviousness
rejections because the applied references utilized in either rejection would
not have taught or suggested “categorizing the learning data or the matching
process run data to an appropriate category”; consequently, neither of the
Examiner’s proposed combinations of references would have collectively
taught or suggested to one of ordinary skill in the art controlling at least one
plasma parameter in a production process based thereon (App. Br. 7-10;
Reply Br. 2-3).
ISSUE
Have Appellants established reversible error in either one of or both
of the Examiner’s obviousness rejections based on the aforementioned
contentions?
SUMMARY DECISION
We answer these questions in the negative for substantially the
reasons set forth by the Examiner in the Answer and as further explained
below. Therefore, we affirm both obviousness rejections maintained by the
Examiner.
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Application 10/462,932

PRINCIPLES OF LAW, RELEVANT FACTUAL FINDINGS,
ANALYSES, AND CONCLUSIONS
Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary considerations. See Graham v.
John Deere Co., 383 U.S. 1, 17-18 (1966). “The combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 127
S. Ct. 1727, 1739 (2007).
In considering the question of the obviousness of the claimed
invention in view of the prior art relied upon, we are guided by the basic
principle that the question under 35 U.S.C. § 103 is not merely what the
references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made. See Merck &
Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) and In re
Keller, 642 F.2d 413, 425 (CCPA 1981). That is, the question of
obviousness cannot be approached on the basis that an artisan having
ordinary skill would have known only what they read in the references,
because such artisan is presumed to know something about the art apart from
what the references disclose. See In re Jacoby, 309 F.2d 513, 516 (CCPA
1962).
Nor is it necessary that suggestion or motivation be found within the
four corners of the references themselves. “The obviousness analysis cannot
be confined by the formalistic conception of the words teaching, suggestion
and motivation, or by overemphasis on the importance of . . . the explicit
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content of issued patents.” KSR, 127 S. Ct. at 1741. The Supreme Court
also noted in KSR that an obviousness analysis “need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id.
Indeed, a conclusion of obviousness may be made from common
knowledge and common sense of the person of ordinary skill in the art
without any specific hint or suggestion in a particular reference. See In re
Bozek, 416 F.2d 1385, 1390 (CCPA 1969). After all, it is well settled that
“[t]he person of ordinary skill in the art is a hypothetical person who is
presumed to know the relevant prior art.” Custom Accessories, Inc. v.
Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed. Cir. 1986).
Here, the Examiner has reasonably and undisputedly found that
“Jahns discloses (Abstract and Fig 7) a method of controlling plasma process
on the basis of real time parameters measured and a process results estimator
(learning data)” (Ans. 4). Moreover, the Examiner’s finding that “Jahns
discloses performing real time measurement of optical emission spectra
(Abstract)…” is uncontested by Appellants (id.). See the Appeal Brief and
the Reply Brief in their entirety.
Also, the Examiner has determined that these measurements are used
by Jahns to control “plasma parameters like power supply and gas flow (Fig
7 and Col 5 lines 5-13)” and that “Jahns further teaches that out of bounds
conditions are detected by the disclosed control system (Col 5 line 55 to Col
6 line 8) and used for warning or shutdown.” Id. Furthermore, the
Examiner points out the reasonable factual finding that: “Jahns teaches a
process condition monitor which can learn different process conditions and
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generate out of bound conditions or a predetermined condition (Col 4 lines
31- 65). Change of product would be a predetermined condition.” Id. These
latter findings of the Examiner are not specifically refuted by Appellants.
See the Appeal Brief and the Reply Brief in their entirety. In this regard, we
further find that Jahns discloses or suggests controlling a plasma etching
process using trained (learned) process condition estimations and plasma
fingerprinting (parameter) measurements employing neural networks
involving distributed information storage (col. 5, l. 2 - col. 6, l. 59; col. 7, l.
51 - col. 11, l. 61).
Similar to the teachings of Jahns but employed in the second stated
rejection, the Examiner has found that “Cruse discloses (Abstract and
paragraph 17 and 19) a method of controlling plasma process on the basis of
real time parameters measured and a model (Paragraph 36) (learning data)”
(Ans. 5). Also, we find that Cruse discloses or suggests correlating all or a
subset of the parametric data inputted to an analyzer for effecting control of
the plasma processing system, including storing such correlated data for
review as learning data for future correlation and control purposes (¶¶ 0031-
0033). In this regard, the Examiner, without specific refutation, determined
that “Cruse discloses performing real time measurement of optical emission
spectra (Abstract) which is indicative of the properties of the plasma to
generate process results … and controls plasma parameters like power
supply and gas flow” (Ans. 5). See the Appeal Brief and the Reply Brief in
their entireties.
Concerning each of the stated obviousness rejections, the Examiner
additionally relies on Shanmugasundram for basically disclosing or
suggesting that a process control model (control software or control
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algorithm) for making process control decisions during a process run would,
of course, depend on the devices/products and processes for which the
control model is developed for use with (Ans. 4-5; Shanmugasundram, col.
10, ll. 36-45). In this regard, we find that Shanmugasundram teaches or
suggests that learning data can be stored and used in controlling the
processing (parameters) employed in subsequent or parallel production
processes involving the processing of other substrates (products) with the
control process tuned or adjusted based, in part, on the relevant learned data
(col. 2, l. 26 – col. 3, l. 29; col. 13, l. 1 – col. 14, l. 31).
In addition to the teachings of the applied prior art references and as
further evidence of the level of skill in the relevant art, we note the following
statement in Appellants’ Specification:
In the interests of clarity not all features of an actual
implementation are described in this specification. It will of
course be appreciated that in the development of any such
actual embodiment, numerous implementation-specific
decisions must be made to achieve the developers' specific
goals, such as compliance with system-related and business-
related constraints, which will vary from one implementation to
another. Moreover, it will be appreciated that such a
development effort might be complex and time-consuming, but
would nevertheless be a routine undertaking for those of
ordinary skill in the art having the benefit of this disclosure.
Spec. 7, ll. 3-9.

Moreover, Appellants only disclosure regarding the claimed
and argued categorization of data appears in the Specification as
follows:
Due to a given systematical dependency (e.g., different
products, different process setup conditions or the like) of the
parameters and due to a general parameter dependency of a
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property to be processed, the data may need to be categorized in
accordance to those dependencies to be handled separately.
Spec. 16, ll. 8-11.

Against this backdrop and regarding Appellants’ claim requirement
for the categorization (organization or classification) of collected
measurement data according to “at least one of a product to be processed in
the production process and a process set up condition for the production
process” (claim 19), the Examiner has reasonably determined that it would
have been obvious to one of ordinary skill in the art “to maintain models
[stored learned data] in a categorized (organized or classified) way
according to process and product needs” and to “organize models [of
measured data used in controlling plasma parameters] according to
process/product category since processes and products continue to undergo
incremental improvements and having a static model would be of only
limited utility” with respect to the process of Jahns, especially in light of the
additional teachings of Shanmugasundram (Ans. 4).
The Examiner has similarly expressed an obviousness position for the
maintained second obviousness rejection by asserting the obviousness of
categorizing measured data, including stored learned data, with respect to
the parameter control of the plasma in the production process of Cruse taken
together with the additional teachings of Shanmugasundram (Ans. 5).
On this record, we fully agree with the Examiner that one of ordinary
skill in the art would have organized or categorized the stored learned data
and process run data for use in controlling at least one plasma parameter in
the production processes of either Jahns or Cruse with the results being
readily predictable (taking account of process and product needs and
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dependencies based on product to be processed, prior process or tool
differences in plasma parameter control) (Ans. 7-8). See KSR, 127 S. Ct. at
1739 (“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”).
One of ordinary skill in the art would have readily appreciated that
controlling plasma parameters in a production process would benefit from
using both types of measured data (stored learned data and process run data)
of a like category for effecting the appropriate control adjustments during a
production process. “A person of ordinary skill is also a person of ordinary
creativity, not an automaton.” KSR, 127 S. Ct. at 1742.
Here, the Examiner has identified a rationale for the proposed
modification of either Jahns’ method or Cruse’s method at several locations
(Ans. 4 - 9). The Examiner’s bases for the rejections have not been fairly
refuted by Appellants unadorned contentions as presented in the Appeal
Brief and Reply Brief. Furthermore, Appellants have not proffered any
persuasive evidence of secondary considerations to refute the prima facie
case of obviousness made out by the Examiner with respect to each
rejection.
Thus, Appellants have not convinced us that the Examiner reversibly
erred in determining that the skill of the art is such that there was a reason
originating in the prior art (taking account of process and product needs and
dependencies based on product to be processed, prior process or tool
differences) for an ordinarily skilled artisan to categorize (organize or
classify) learned data and process run data in controlling at least one plasma
parameter in the processes of either Jahns or Cruse.
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On this record, we concur with the Examiner’s obviousness
determinations.

ORDER
The decision of the Examiner to reject claims 19-28 under 35 U.S.C. §
103(a) as being unpatentable over Jahns in view of Shanmugasundram and
to reject claims 19-28 under 35 U.S.C. § 103(a) as being unpatentable over
Cruse in view of Shanmugasundram 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

PL Initial;
sld

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