Ex Parte Kido et al

Board of Patent Appeals and Interferences

Dec 30, 2010

11293988 (B.P.A.I. Dec. 30, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/293,988 12/05/2005 Shusaku Kido WAM-064USCON3 6611
54004 7590 01/03/2011
MUIRHEAD AND SATURNELLI, LLC
200 FRIBERG PARKWAY
SUITE 1001
WESTBOROUGH, MA 01581
EXAMINER
CHANDRA, SATISH
ART UNIT PAPER NUMBER
1716
MAIL DATE DELIVERY MODE
01/03/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SHUSAKU KIDO, YOSHIHIDE IIO, and MASAKI IKEDA
____________

Appeal 2010-001874
Application 11/293,988
Technology Center 1700
___________

Before EDWARD C. KIMLIN, MARK NAGUMO, and
KAREN M. HASTINGS, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL1

Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 19-25 and 27-36. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2010-001874
Application 11/293,988

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We AFFIRM.
Claim 19 is illustrative of the subject matter on appeal:
19. A substrate processing system which sprays exposure process
gas onto a substrate disposed within a chamber, the chamber having at least
one gas inlet and at least one gas outlet, the system comprising:

a gas introducing means which introduces the exposure process gas
into the chamber via the gas inlet; and

a gas distributing means;

wherein the gas distributing means separates an inner space of the
chamber into a first space into which the exposure process gas is introduced
via the gas inlet and a second space in which the substrate is disposed,
wherein the gas distributing means has a plurality of openings via which the
first and second spaces communicate with each other, comprises a curved
plate convex or concave towards an associated substrate, and introduces the
exposure process gas introduced into the first space, into the second space
via the openings, and wherein the gas distributing means is rotatable around
a center thereof.

The Examiner maintains, and Appellants appeal, the following
rejections under 35 U.S.C. § 103(a)2:
1) claims 19-22, 24, 28-30, 32, and 33 as unpatentable over the
combined prior art of Yagi3, Tei4, and Goodwin5;
2) claims 23 and 25 as unpatentable over the combined prior art of
Yagi, Tei, Goodwin, and Sakuma6;

2 The provisional obviousness-type double patenting rejection made in the
Final Office Action over specified claims of Application No. 11/293,962 is
moot, since this application is now abandoned.
3 US 6,473,993 B1, issued Nov. 05, 2002.
4 US 6,929,830 B2, issued Aug. 16, 2005.
5 US 7,018,479 B2 issued Mar. 28, 2006.
6 US 6,506,253 B2 issued Jan. 14, 2003.
Appeal 2010-001874
Application 11/293,988

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3) claims 23 and 25 as unpatentable over the combined prior art of
Yagi, Tei, Goodwin, and Satoru7;
4) claim 27 as unpatentable over the combined prior art of Yagi, Tei,
Goodwin, and Omstead8;
4) claim 31 as unpatentable over the combined prior art of Yagi, Tei,
Goodwin, and Fairbairn9;
5) claims 34 and 35 as unpatentable over the combined prior art of
Yagi, Tei, Goodwin, and Cain10;
6) claim 36 as unpatentable over the combined prior art of Yagi, Tei,
Goodwin, and Yonemitsu11.
Appellants do not set forth separate, substantive arguments for any
particular claim on appeal, including those claims that are separately rejected
(App. Br. 7-20).
Appellants’ arguments focus on the limitations that the gas
distributing means comprises “a curved plate convex or concave plate” and
that the gas distribution means is “rotatable” (claim 19).12

7 JP 61037969 issued Feb. 22, 1986.
8 US 6,508,197 B1, issued Jan. 21, 2003.
9 US 2007/0128538 A1 issued Jun. 2, 2007.
10 US 5,439,524 issued Aug. 8, 1995.
11 US 6,066,210, issued May 23, 2000.
12 Appellants point to page 34, lines 11-16 of their Specification as support
for the curved limitation (App. Br. 4), where the Specification describes that
the “plate 21 is formed as a flat plate member. However, it is also possible
to form the gas spouting plate 21 from a curved plate which has a convex or
concave surface towards the substrate 1.” This appears to be the only
description of this limitation in the Specification. Likewise, Appellants
point to page 31, lines 20-26 as support for the rotatable feature (id.), where
the Specification describes that the plate 21 is fixed, “[h]owever, it is also
possible to make the gas spouting plate 21 rotatable” to thereby more
Appeal 2010-001874
Application 11/293,988

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Accordingly, like Appellants, we shall focus our discussion on these
limitations of the sole independent claim, claim 19.

MAIN ISSUE ON APPEAL
Did the Examiner reversibly err in determining that the claimed
substrate processing system of claim 19 would have been obvious over the
combined prior art of Yagi, Tei, and Goodwin, because, as alleged by
Appellants,
a) Tei does not suggest its microwave plate may be rotated, and its
plate “appears demonstrably inoperable” if rotated (App. Br. 11); and
b) the combination of the rotating showerhead of Goodwin with the
fixed microwave plate of Tei would change the principle of operation of Tei
(App. Br. 12)?
We answer these questions in the negative.

PRINCIPLES OF LAW
In assessing whether a claim to a combination of prior art elements
would have been obvious, the question to be asked is whether the
improvement of the claim is more than the predictable use of prior art
elements according to their established functions. KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007). The analysis need not seek out precise
teachings directed to the specific subject matter of the claim, for it is proper
to take account of the inferences and creative steps that a person of ordinary
skill in the art would employ. Id. at 418.

uniformly spray the exposure process gas onto the substrate. This appears to
be the only description of this limitation in the Specification.
Appeal 2010-001874
Application 11/293,988

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“For obviousness under § 103, all that is required is a reasonable
expectation of success.” In re O'Farrell, 853 F.2d 894, 903-04 (Fed. Cir.
1988)
ANALYSIS
with Factual Findings
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in agreement with the Examiner that the
claimed subject matter would have been obvious to one of ordinary skill in
the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejection for essentially those
reasons expressed in the Answer, and we add the following primarily for
emphasis.
Appellants’ arguments that Tei does not suggest its microwave plate
may be rotated, and its plate “appears demonstrably inoperable” if rotated
(App. Br. 11), and that the combination of the rotating showerhead of
Goodwin with the fixed microwave plate of Tei would change the principle
of operation of Tei (App. Br. 12), are unavailing essentially for the reasons
pointed out by the Examiner (Ans. 16-23). Specifically, the Examiner’s
rejection is not based on modifying Tei to make its plate rotatable; rather,
the rejection is based on modifying the gas distribution plate in the substrate
processing system of Yagi. We agree with the Examiner that Tei
exemplifies the known use and benefits of a convex or concave gas
distribution plate as an alternative to a flat plate in a substrate processing
system (Ans. 17-18), while Goodwin teaches the known use of a rotatable
distribution in a substrate processing system (Ans. 19). The artisan would
have thus appreciated that the use of a convex or concave plate to match the
Appeal 2010-001874
Application 11/293,988

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substrate would have been a known alternative to a flat plate gas distributor
for use in a substrate processing system. Goodwin teaches the known use of
a rotating showerhead so gases flow more uniformly onto the substrate.
Accordingly, the Examiner’s position that the use of a curved rotatable gas
distribution plate would have been obvious in a substrate processing system,
such as exemplified in Yagi, is reasonable.
Furthermore, Appellants have not provided any persuasive technical
reasoning or evidence to refute the Examiner’s determination that the artisan
would have appreciated that a known rotatable showerhead, as taught in
Goodwin, including a curved plate distributor as to match a substrate, as
taught in Tei, would also predictably function as an alternative showerhead
in Yagi.
Under these circumstances, Appellants have not shown reversible
error in the Examiner’s determination that the subject matter of claim 19
would have been prima facie obvious over the combined teachings of the
applied prior art references.
For the reasons stated above and in the Answer, we sustain all of the
§ 103 rejections of the appealed claims13.
The decision of the Examiner 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).
AFFIRMED

13 Only those arguments actually made by Appellants have been considered
in this decision. Arguments which could have been made but that
Appellants chose not to make have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2008).
Appeal 2010-001874
Application 11/293,988

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sld

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200 FRIBERG PARKWAY
SUITE 1001
WESTBOROUGH, MA 01581