Ex Parte Grasshoff et alDownload PDFBoard of Patent Appeals and InterferencesNov 13, 200810462932 (B.P.A.I. Nov. 13, 2008) Copy Citation 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 2 Appeal 2008-2101 Application 10/462,932 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. 3 Appeal 2008-2101 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 4 Appeal 2008-2101 Application 10/462,932 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 5 Appeal 2008-2101 Application 10/462,932 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 6 Appeal 2008-2101 Application 10/462,932 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 7 Appeal 2008-2101 Application 10/462,932 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 8 Appeal 2008-2101 Application 10/462,932 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. 9 Appeal 2008-2101 Application 10/462,932 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 WILLIAMS, MORGAN & AMERSON 10333 RICHMOND SUITE 1100 HOUSTON, TX 77042 10 Copy with citationCopy as parenthetical citation