10476309 (B.P.A.I. Jun. 30, 2010)

Ex Parte Hass et al

Board of Patent Appeals and InterferencesJun 30, 2010

10476309 (B.P.A.I. Jun. 30, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte DEREK D. HAAS, JAMES F. GROVES, and HAYDN N. G. WADLEY ____________ Appeal 2009-002628 Application 10/476,309 Technology Center 1700 ____________ Decided: June 30, 2010 ____________ Before JEFFREY T. SMITH, LINDA M. GAUDETTE, and KAREN M. HASTINGS, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134 from the Examiner's final rejection of claims 1-11, 21, and 22. Claims 12-20 have been withdrawn from consideration. We have jurisdiction under 35 U.S.C. Â§ 6(b). 1 1 In rendering this decision we have considered Appellantsâ€™ Brief dated March 31, 2008, and the Reply Brief filed July 9, 2008. Appeal 2009-002628 Application 10/476,309 2 STATEMENT OF THE CASE Claim 1 is representative of the subject matter on appeal and is set forth below: 2 1. A method for applying at least one coating on at least one substrate comprising; presenting said at least one substrate to a chamber, wherein said chamber has an operating pressure ranging from about 0.1 to about 32,350 Pa; presenting at least one evaporant source to said chamber; presenting at least one carrier gas stream to said chamber; intentions said at least one evaporant source with at least one electron beam and said chamber to generate an evaporated vapor flux in a main direction towards said substrate; and entraining said at least one generating evaporated vapor flux by said at least one carrier gas stream, wherein said carrier gas stream is essentially parallel to said main direction and substantially surrounds said evaporated flux, wherein said evaporated flux at least partially coats at least one said substrate. THE REJECTIONS Appellants request review of the following rejections: I. Claims 1-4, 21, and 22 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Wadley, U.S. 5,736,073, patented April 7, 1998, and Mikoshiba, U.S. 4,989,541, patented February 5, 1991. 2 The claim is reproduced from the appendix to the Appeal Brief. Appeal 2009-002628 Application 10/476,309 3 II. Claims 5, 6, and 9-11 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Wadley, Mikoshiba, Miyauchi, U.S. 4,687,939, patented August 18, 1987. III. Claims 7 and 8 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Wadley, Mikoshiba, Miyauchi, and Tsukazaki, U.S. 4,812,326, patented March 14, 1989. IV. Claims 1-11, 21, and 22 stand provisionally rejected on the ground of nonstatutory obvious-type double patenting over claims 1, 4, 8-16, 19, and 20 of co-pending Patent Application 10/489,090. With regard to rejection I, Appellants have not provided separate arguments for the rejected claims. Regarding the rejections II and III, Appellants rely upon the arguments presented in response to rejection I. We select claims 1 and 22 as representative of the rejected subject matter. ISSUE Regarding rejections I-III, the dispositive issue is: Did the Examiner err in determining that it would have been obvious to a person of ordinary skill in the art to incorporate a ring shaped nozzle in the process of Wadley in order to entrain the generated evaporated vapor flux by a carrier gas stream, wherein the carrier gas stream is essentially parallel to the main direction and substantially surrounds the evaporated flux as required by the independent claims 1 and 22? We answer this question in the affirmative. PRINCIPLES OF LAW Appeal 2009-002628 Application 10/476,309 4 In order to establish a prima facie case of obviousness, the Examiner must show that each and every limitation of the claim is described or suggested by the prior art or would have been obvious based on the knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). ANALYSIS The Examiner found that Wadley describes a deposition chamber for depositing a coating on the substrate that differed from the claimed invention by not disclose a ring shaped nozzle and a carrier gas stream that essentially surrounds the evaporated flux and is parallel to the main direction. (Ans. 4). The Examiner found that Mikoshiba describes a CVD chamber that comprises a ring shaped nozzle that shapes the carrier gas to entrain, and material gas that is parallel to the main direction of the material gas. (Ans. 5). The Examiner concluded that it would have been obvious to a person of ordinary skill in the art to incorporate the ring shaped nozzle of Mikoshiba in the process of Wadley in order to surround the evaporated material by a carrier gas. (Ans. 5). Appellants argue there is no apparent reason for adding a control gas nozzle to the Wadley apparatus. Appellants also argue that the incorporation of the ring shaped nozzle of Mikoshiba in the invention of Wadley would result in a nonfunctional apparatus. Appellants argue that the apparatus of Wadley is specifically configured to ensure that the molten pool formed by the e-beam heating does not drip off the top of the source material. (Br. 8- 9). We agree with Appellants. The Examiner has not provided a factual basis or reasonable explanation thereof for concluding that a person of Appeal 2009-002628 Application 10/476,309 5 ordinary skill in the art would have arrived at the method of the claimed invention. As argued by Appellants (Br. 7), Mikoshiba discloses the control gas prevents turbulence in the source flow by creating a sheath around the source flow. (Mikoshiba, col. 3, ll. 31-36). Mikoshiba discloses that the control gas (8) flows at a rate so as to direct the source flow towards the target substrate. Wadley does not disclose and the Examiner has not directed us to a reason for utilizing the carrier/control gas to create a sheath around the evaporated flux. Furthermore, the Examiner has not explained how the presence of a sheath around the evaporated flux would have functioned in the system of Wadley. For the reasons set forth above and those by Appellants we reverse the stated rejection. Rejection IV We decline to reach the merits of the obviousness-type provisional double patenting rejection since all prior art rejections in the present application have been reversed. The Examiner should process the obviousness type double patenting rejection consistent with MPEP Â§ 804 upon return of the present application to the jurisdiction of the Examiner. DECISION The Examinerâ€™s prior art rejections of claims 1-11, 21, and 22 under 35 U.S.C. Â§103(a) are reversed. REVERSED PL Initial: sld Appeal 2009-002628 Application 10/476,309 6 NOVAK DRUCE DELUCA + QUIGG LLP 300 NEW JERSEY AVENUE NW FIFTH FLOOR WASHINGTON DC 20001