Ex Parte Johnson et al

Board of Patent Appeals and Interferences

Mar 31, 2009

10968823 (B.P.A.I. Mar. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte DAVID JOHNSON,
RUSSELL WESTERMAN, and
SUNIL SRINIVASAN
____________

Appeal 2009-1591
Application 10/968,823
Technology Center 1700
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Decided:1 March 31, 2009
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Before BRADLEY R. GARRIS, CHUNG K. PAK, and
CATHERINE Q. TIMM, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-1591
Application 10/968,823

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 15 and 18-23. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
I. STATEMENT OF THE CASE
The invention relates to a plasma generating device for the
manufacture of high aspect ratio silicon structures using alternating
deposition and etching steps with a frequency modulated RF bias. (Spec. 1,
ll. 10-12). Claim 15 is illustrative of the subject matter on appeal:
15. An apparatus for etching a feature in a substrate comprising:

a vacuum chamber;

at least one gas supply source for supplying at least one process gas
into said vacuum chamber;

an exhaust in communication with said vacuum chamber;

a lower electrode positioned within said vacuum chamber;

a substrate holder connected to said lower electrode;

a plasma source, said plasma source generating a plasma from said
process gas within said vacuum chamber;

a control system, said control system changing the plasma conditions
of the generated plasma to alternate between etching the substrate and
depositing a passivation layer on the substrate; and

a modulation signal generator, said modulation signal generator
providing a frequency modulated RF bias to said lower electrode.

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Appeal 2009-1591
Application 10/968,823

Appellants request review of the sole rejection maintained by the
Examiner, namely the rejection of claims 15 and 18-23 under 35 U.S.C.
§ 103(a) as obvious over U.S. Patent No. 5,935,373, issued Aug. 10, 1999,
to Koshimizu (“Koshimizu”) in view of U.S. Patent No. 4,985,114, issued
Jan. 15, 1991, to Okudaira et al. (“Okudaira”) and U.S. Patent No.
6,110,287, issued Aug. 29, 2000, to Arai et al. (“Arai”).
Since no claims are argued separately from the others, we decide this
Appeal on the basis of representative independent claim 15. See 37 C.F.R.
§ 41.37(c)(1)(vii) (“When multiple claims subject to the same ground of
rejection are argued as a group by appellant, the Board may select a single
claim from the group of claims that are argued together to decide the appeal
with respect to the group of claims as to the ground of rejection on the basis
of the selected claim alone.”).
II. ISSUE ON APPEAL
The sole issue on appeal arising from the contentions of Appellants
and the Examiner is: have Appellants show that the Examiner reversibly
erred in combining the teachings of Koshimizu, Okudaira and Arai to arrive
at the claimed invention?
III. FACTUAL FINDINGS
The following Findings of Fact (FF) are relevant to deciding the issue
on appeal:
1. Koshimizu teaches a plasma processing apparatus, suitable for
use in plasma etching or plasma deposition processes, including a processing
chamber 102, a susceptor (lower electrode) 106 supported by a insulating
plate 104 on which a substrate is placed, a processing gas supply port 156, a
gas source 158, an exhaust pipe 162 to evacuate a gas via a vacuum pump,
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Appeal 2009-1591
Application 10/968,823

plasma generating RF antennas 112a and 112b, and a controller 122 to
control the phase of the current of the bias RF power. (Koshimizu, col. 3,
ll. 43-48; col. 5, ll. 30-32 and 41-50; col. 6, ll. 19-23).
2. Okudaira teaches a gas control device and a power control
device to switch from plasma etching to plasma deposition in order to avoid
a micro-loading effect in micromanufacture etching. (Okudaira, col. 1, l. 50
to col. 2, l. 2; col. 4, l. 63 to col. 5, l. 1).
3. Arai teaches a modulating device 23 to modulate the high-
frequency power to the lower electrode by means of a lower frequency
electric power, so as to prevent charge up while not lowering the etching
rate. (Arai, col. 4, ll. 1-12; col. 5, ll. 30-35).
IV. PRINCIPLES OF LAW
“On appeal to the Board, an applicant can overcome a rejection by
showing insufficient evidence of prima facie obviousness or by rebutting the
prima facie case with evidence of secondary indicia of nonobviousness.”
In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (emphasis omitted).
“Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
V. ANALYSIS
The only arguments presented by the Appellants attack the references
individually. (App. Br. 10-12). In attacking the references individually,
Appellants fail to address the Examiner’s actual rejection and present no
evidence that the Examiner has erred in his determination of obviousness.
Merck & Co., Inc., 800 F.2d at 1097. The Examiner has cogently made out
a prima facie case relying on Koshimizu to teach the claimed plasma
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Appeal 2009-1591
Application 10/968,823

processing apparatus, Okudaira to teach a controller for switching from
etching to deposition, and Arai to teach a modulator for modulating the
frequency of the RF bias to a lower electrode (Ans. 4-6); facts with which
we readily agree. (FF 1-3). The Examiner made a finding, derived from
these teachings (FF 2-3), as to why one of ordinary skill in the art would
have combined these teachings to arrive at the claimed invention. (Ans. 5
and 6). Appellants have not contested these stated reasons.
VI. CONCLUSION
For the reasons discussed above and provided by the Examiner, we
sustain the Examiner’s rejection of claims 15 and 18-23 under 35 U.S.C.
§ 103(a) as being obvious over Koshimizu in view of Okudaira and Arai.
VII. DECISION
We affirm the Examiner’s decision.
VIII. TIME PERIOD FOR RESPONSE
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)(v)(2008).

AFFIRMED

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