Ex Parte Higashi et alDownload PDFPatent Trial and Appeal BoardMay 10, 201813598431 (P.T.A.B. May. 10, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/598,431 08/29/2012 20995 7590 05/14/2018 KNOBBE MARTENS OLSON & BEAR LLP 2040 MAIN STREET FOURTEENTH FLOOR IRVINE, CA 92614 FIRST NAMED INVENTOR Noboru Higashi UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. UNIU130.001AUS 1703 EXAMINER KLUNK, MARGARET D ART UNIT PAPER NUMBER 1716 NOTIFICATION DATE DELIVERY MODE 05/14/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): j ayna.cartee@knobbe.com efiling@knobbe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NOBORU HIGASHI, SATORU HIRAKI, HIROMI KIYOSE, HIDEAKI SATO, and HIROSHI KOMIY A Appeal2017-007805 Application 13/598,431 1 Technology Center 1700 Before ROMULO H. DELMENDO, KAREN M. HASTINGS, and JAMES C. HOUSEL, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Primary Examiner's final decision to reject claims 1 and 4---6. We have jurisdiction under 35 U.S.C. § 6(b). 2 1 The Applicants (hereinafter "Appellants") state that the real parties in interest are "Kurashiki Boseki Kabushiki Kaisha and Tokyo Electron Limited." Appeal Brief (Appeal Br. 3) filed Nov. 11, 2016. 2 Our Decision refers to the Specification filed Aug. 29, 2012 ("Spec."), the Final Office Action notice emailed Aug. 11, 20016 ("Final Act."), the Appeal Brief, the Examiner's Answer notice emailed Mar. 1, 2017 ("Ans."), and the Reply Brief filed May 1, 2017 ("Reply Br."). Appeal2017-007805 Application 13/598,431 We REVERSE. BACKGROUND The subject matter on appeal relates to a substrate processing apparatus (see, e.g., claim 1 ). The Inventors disclose that to manage the etching amount of a silicon nitride film with good precision, it is extremely important to control the ratio of a chemical agent ( e.g., acid) to a diluent and to control the temperature of the mixture. Spec. ,r,r 2-3 and 5. The Inventors further disclose that conventional systems could not measure the concentration of an aqueous system in real time. Id. ,r 12. According to the Inventors, they have addressed this problem by developing an apparatus that performs independent concentration control via an optical sensing method but they have further discovered that lenses disposed near the processing liquid are radiatively heated, which causes measurement errors. Id. ,r,r 13- 14. In view of this, the Inventors disclose an apparatus that can perform independent concentration control with good precision because the apparatus includes a cooling mechanism for lenses of the optical sensing system. Id. ,r,r 16-17. Representative claim 1 is reproduced below from pages 11-12 of the Appeal Brief (Claims Appendix) ( emphasis and some indentation added), as follows: 1. A substrate processing apparatus comprising: a processing tank that stores a processing liquid obtained by mixing phosphoric acid with a diluent and performs processing by immersing a substrate into the processing liquid; a heater for heating the processing liquid; replenishing means for replenishing the processing liquid with the diluent; 2 Appeal2017-007805 Application 13/598,431 a concentration sensor for sensing a concentration of the processing liquid by measuring absorbance characteristics of the processing liquid; and concentration controller for operating the replenishing means so that the concentration sensed by the concentration sensor can come close to a set concentration, wherein the concentration sensor comprises: a light-transmitting section that introduces the processing liquid into an inside to let the processing liquid pass therethrough; a light-emitting section that radiates light led by an optical fiber having a predetermined wavelength to the light-transmitting section; a light-receiving section that receives the light from the light-emitting section via the light transmitting section to introduce into an optical fiber; a first lens that is disposed between the light- emitting section and the light-transmitting section to condense the light emitted from the light-emitting section to the light-transmitting section; a second lens that is disposed between the light- transmitting section and the light-receiving section to condense the light that has been emitted from the light- emitting section and has passed through the light- transmitting section to the light-receiving section; a cooling mechanism that performs cooling of at least one of the first lens and the second lens; and a first lens holding piece that directly holds the first lens and a second lens holding piece that directly holds the second lens, wherein the cooling mechanism comprises a flow path disposed in the first lens holding section or the second lens holding section, and a supply of a cooling fluid in fluid communication with the flow path, and the flow path is disposed in a space within the first lens holding piece or the second lens holding piece and the space surrounds at least part of a periphery of the first lens or the second lens. 3 Appeal2017-007805 Application 13/598,431 REJECTIONS ON APPEAL I. claims 1, 4, and 5 as being unpatentable under 35 U.S.C. § I03(a) by Izuta3 in view of Yokota4 and Takami; 5 II. claim 6 as being unpatentable under 35 U.S.C. § I03(a) over Izuta, Yokota, and Takami and further in view of Ogawa; 6 and III. claims 1 and 4---6 as being unpatentable over claims 1, 3, and 4 of copending application 13/811,877 in view of Takami, a provisional rejection on the ground of nonstatutory double patenting. DISCUSSION Rejection over Izuta, Yokota, and Takami Claims 1, 4, and 5 are rejected as being unpatentable under 35 U.S.C. § I03(a) by Izuta in view of Yokota and Takami. The Examiner finds Izuta discloses a system including a processing tank, a heater for heating a processing liquid, a replenishing means for replenishing the processing liquid with a diluent, a sensor that determines concentration using pressure, and a concentration controller. Ans. 4--5. The Examiner finds Izuta does not disclose the concentration sensor recited in claim 1 but finds Yokota discloses an optical-based concentration sensing device. Id. at 5. The Examiner concludes it would have been obvious to 3 Izuta, US 2004/0140365 Al, published July 22, 2004 ("Izuta"). 4 Yokota, US 2011/0315228 Al, published Dec. 29, 2011 ("Yokota"). 5 Takami, US 2006/0028633 Al, published Feb. 9, 2006 ("Takami"). 6 Ogawa et al., US 2004/0157452 A2, published Aug. 12, 2004 ("Ogawa"). 4 Appeal2017-007805 Application 13/598,431 modify Izuta to include the optical sensing means of Yokota so etchant is not damaged and continuous monitoring of the etchant can be accomplished. Id. The Examiner finds Izuta, as modified by Yokota, does not disclose cooling. Id. The Examiner finds "Takami teaches that controlled temperature is very important for the optical characteristics of converging lenses [0050] such as those of Yokota." Id. The Examiner concludes it would have been obvious to modify Izuta, as modified by Yokota, further in view of Takami to include cooling to avoid changing the refractive index of lenses and avoid erroneous results. Id. at 5---6. Appellants contend the applied references do not recognize the deterioration of optical characteristics of lenses used for a concentration device. Appeal Br. 7-9. In view of this, Appellants assert the Examiner has relied upon impermissible hindsight in the rejection of claim 1. Reply Br. 1- 2. Appellants' arguments are persuasive. Izuta is directed to an apparatus for treating substrates, such as semiconductor wafers, with a treating solution ( e.g., phosphoric acid) having a controlled concentration. Izuta ,r,r 2-5 and 1 7-18. Yokota is directed to a method of measuring a characteristic (e.g., concentration) of a fluid, such as a mixture of acid with water, inside a flow channel via an optical device and controlling the characteristic of the fluid based upon the measurement. Yokota ,r,r 2, 21-24, 27, 37, 39, and 42. The optical measurement system includes optical fibers and lenses. Id. ,r,r 146-148. Takami is directed to a laser crystallization apparatus that irradiates a polycrystalline or amorphous semiconductor film with laser light via various lenses and optical elements to generate a crystallized semiconductor film. 5 Appeal2017-007805 Application 13/598,431 Takami ,r,r 3 and 32-37. The apparatus further includes temperature adjustment mechanisms, including internal flow paths through lens holders for a liquid coolant. Id. ,r,r 54, 57, and 59. The Examiner finds that "Takami teaches the cooling mechanism preserves optical behavior to prevent changes due to temperature fluctuations," citing paragraph 50 of Takami, and thus Takami teaches temperature changes affect the optical behavior of lenses. Ans. 11. However, Takami states in paragraph 50 that temperature changes cause "a change in image plane position ( a focal position) of several µm," such as "10 µm with respect to a lens temperature change of 1 ° C." Although a focal position shift of several micrometers may be significant for a process that crystallizes semiconductor films, as in Takami, the Examiner has not sufficiently explained why a temperature induced optical variation on the micrometer scale would be significant or relevant for a process that measures concentration via an optical device, such in as the process of Izuta, as modified in view of Yokota. Thus, the Examiner has not articulated a sufficient rationale explaining why one of ordinary skill in the art would have modified Izuta, as modified by Yokota, to further include the cooling mechanism of Takami. Instead, it appears that the rejection of claim 1 is based upon impermissible hindsight. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,421 (2007) (citing Graham v. John Deere Co., 383 U.S. 1, 36 (1966) (warning against a "temptation to read into the prior art the teachings of the invention in issue"). In view of the above, the Examiner has not set forth a prima facie case of obviousness for claim 1 over Izuta in view of Yokota and Takami. In re 6 Appeal2017-007805 Application 13/598,431 Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (The Examiner "bears the initial burden ... of presenting a primafacie case ofunpatentability."). Claims 4 and 5 depend from claim 1. For these reasons, we cannot sustain the Examiner's rejection of claims 1, 4, and 5. Rejection over Izuta, Yokota, Takami, and Ogawa Claim 6 is rejected as being unpatentable under 35 U.S.C. § 103(a) over Izuta, Yokota, and Takami and further in view of Ogawa. Claim 6 depends from claim 1. The Examiner's reliance on Ogawa does not cure the deficiencies discussed above with regard to the rejection of claim 1. Therefore, we also do not sustain the obviousness rejection of claim 6 for the same reasons. Double Patenting Rejection Claims 1 and 4---6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, and 4 of copending application 13/811,877 in view of Takami. The Examiner finds claim 1 of application 13/811, 877 discloses the limitations of claim 1 in the application on appeal but not the recited cooling mechanism. Ans. 9. The Examiner makes findings and a conclusion of obviousness regarding Takami similar to those set forth in the§ 103(a) rejection of claim 1. Id. Therefore, we do not sustain the provisional double patenting rejection of claims 1 and 4---6 because it rests upon the same reasoning and deficiencies as the§ 103(a) rejection of claim 1. 7 Appeal2017-007805 Application 13/598,431 DECISION On the record before us and for the reasons given in Appellants' Appeal and Reply Briefs, we reverse the Examiner's rejections. REVERSED 8 Copy with citationCopy as parenthetical citation