Ex Parte Lee et al

Patent Trial and Appeal Board

Sep 26, 2016

12831731 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/831,731 07/07/2010 DongsuhLee
44257 7590 09/28/2016
PATTERSON & SHERIDAN, LLP- - Applied Materials
24 Greenway Plaza, Suite 1600
HOUSTON, TX 77046
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.
015211/DISPLAY/AHRDWR 3025
EXAMINER
LEE,AIDENY
ART UNIT PAPER NUMBER
1718
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
Pair_Eofficeaction@pattersonsheridan.com
psdocketing@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONGSUH LEE, WEIJIE WANG, WILLIAM N. STERLING,
SAM H. KIM, SOO YOUNG CHOI, BEOM SOO PARK
and QUNHUA WANG
Appeal2015-004404
Application 12/831,731
Technology Center 1700
Before JEFFREY T. SMITH, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 1-13 and 17-21. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
Appeal2015-004404
Application 12/831,731
Appellants' invention is best illustrated by independent claim 1,
reproduced below (emphasis added to highlight disputed features):
1. A mixing block, comprising:
a body formed by a single mass of material;
an integral mixing structure having a first bore and a
second bore, the first bore and the second bore formed in the
body and separated by a mixing element, wherein the mixing
element is an unitary component of the body;
two precursor delivery ports formed in the single mass of
material of the body and coupled to the first bore;
a common outlet port formed in the body and coupled to
the second bore; and
at least one passage formed in the body for allowing a
temperature control fluid to flow through the body.
Appellants (see Appeal Brief, generally) appeal the following
rejections under 35 U.S.C. § 103(a):
(a) claims 1---6 and 17-21 as unpatentable over Bailey et al., (US
2007/0248516 Al, published October 25, 2007), Lei et al., (US 5,968,276,
issued October 19, 1999) and Amo et al., (US 2005/0178332 Al, published
August 18, 2005);
(b) claims 7-10, 12, and 13 as unpatentable over Bailey, Lei, Amo
and Yin et al., (US 6,189,484 Bl, issued February 20, 2001);
(c) claim 11 as unpatentable over Bailey, Lei, Amo, Yin and Yu (US
2008/0233690 Al, published September 25, 2008);
(d) claims 1-6 and 17-21 as unpatentable over Bailey, Lei, Metzner
(US 6,454,860 B2, issued September 24, 2002), and Sillmon et al., (US
6,666,920 Bl, issued December 23, 2003);
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Application 12/831,731
(e) claims 7-10 and 12-13 as unpatentable over Bailey, Lei, Metzner,
Sillmon and Yin; and
(f) claim 11 as unpatentable over Bailey, Lei, Metzner, Sillmon, Yin
and Yu.
Appellants argue independent claims 1 and 1 7 (Rejection (a)) and 7
(Rejection (b)) together and, in doing so, limit their arguments only to the
references to Bailey and Lei that are common to all rejections. See Appeal
Brief, generally. 1 Appellants do not present separate arguments for
dependent claims 2---6, 8-10, 12, 13 and 18-21 (Rejections (a) and (b)). Id.
In addressing Rejections ( c }-(f), Appellants rely on the arguments presented
when discussing the independent claims and do not address or further
distinguish the additionally cited secondary references based on the
additional limitations of the respectively rejected claims. Id. at 13-14.
1 We note Appellants presented arguments addressing the Yin reference in
the separate rejection of claims 7-10, 12 and 13 (Rejection (b)) for the first
time in the Reply Brief filed March 2, 2015. Reply Br. 7. Any argument not
presented in the Appeal Brief will not be considered when filed in a Reply
Brief, absent a showing of good cause explaining why the argument could
not have been presented in the Appeal Brief. See Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (informative) ("the replybrief[is not] an
opportunity to make arguments that could have been made in the principal
brief on appeal to rebut the Examiner's rejections, but were not."); compare
also Optivus Tech., Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 989
(Fed. Cir. 2006) (argument raised for the first time in the Reply Brief is
considered waived); see also 37 C.F.R. § 41.41(b)(2). Appellants have not
shown good cause why Rejection (b ), with a focus on the reference to Yin, is
now argued separately, particularly when Appellants argue all independent
claims, including independent claim 7, together in the principal brief. App.
Br. 7.
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Appeal2015-004404
Application 12/831,731
Accordingly, we select independent claim 1 as representative of the claimed
subject matter before us on appeal. Claims 2-13 and 17-21 stand or fall
with claim 1.
OPINION
We have reviewed each of Appellants' arguments for patentability.
However, we are in agreement with the Examiner that the subject matter of
representative claim 1 is unpatentable. Accordingly, we sustain the
Examiner's prior art rejections for the reasons explained in the Answer, and
we add the following primarily for emphasis.
Independent claim 1 is directed to a mixing block for a CVD process
for mixing precursors and/or cleaning agents and suitable for maintaining
the temperature of the mixing block during both precursor delivery and
cleaning within a predetermined range by heating or cooling the mixing
block as needed. Spec. 11111, 5, 8; App. Br. 5---6.
We refer to the Examiner's Non-Final Action of February 11, 2014
for a statement of the rejection of representative claim 1. Non-Final Act. 4--
7.
Appellants argue the Examiner fails to construe the single mass of
material as it would be interpreted by one of ordinary skill in the art in light
of the Specification. App. Br. 7; Spec. i-f 8. Appellants argue the form and
function of the single mass of material in the claimed invention is different
from the cited references because the single mass of material helps to
maintain the uniformity of the temperature of the mixing block and fluids
passing therethrough while a mixing block made from multiple pieces of
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Application 12/831,731
material would inhibit heat transfer across the block. App. Br. 9; Spec. if 8.
Thus, Appellants argue the combined teachings of Bailey and Lei do not
disclose a mixing block capable of performing the functions of the a single
mass of material and a unitary component of the body as required by the
subject matter of independent claim 1 absent impermissible hindsight. App.
Br. 10, 13.
We are unpersuaded by these arguments. The Examiner rejected
these claims as obvious, contending that the mixing block of Bailey
discloses the invention substantially as claimed except for the at least one
passage formed in the single mass of material to allow a temperature control
fluid to flow through the single mass of material. Non-Final Act. 4---6;
Bailey Figure 4, iii! 31-33. Bailey is silent as to how mixing block 102 is
made. However, the Examiner contends that the mixing block 102 of Bailey
is considered to be a single mass. Non-Final Act. 5---6; Ans. 10. The
Examiner further contends that modifying Bailey to include cooling
passages as taught by Lei would have been obvious to a person skilled in the
art because Lei teaches as known the use of cooling passage 52 in a
manifold block (single mass) to thermally control the reaction of gases fed
though gas passages 80, 82. Non-Final Act. 6-7; Lei Figure 8, col. 5, 11. 39-
44. Note that Figure 8 of Lei shows the gas and cooling fluid passages in a
single mass of material.
Assuming arguendo that the mixing block of Bailey is not made from
a single mass of material but, instead, made of separate parts welded
together, the Examiner contends, citing In re Larson, 340 F .2d 965, 968
(CCP A 1965), that it would have been obvious to one of ordinary skill in the
art to make the mixing block from a single mass of material because merely
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Application 12/831,731
making separate parts integral involves only routine engineering design.
Non-Final Act. 10; Ans. 11.
In reviewing the relevant facts of this case, a preponderance of the
evidence supports the Examiner's position that integrally forming a mixing
body from a single mass of material to comprise an integral mixing structure
having first and second chambers (bores) separated by a mixing element, gas
delivery inlet ports, a common outlet port and cooling fluid passages would
have been obvious to one of ordinary skill in the art. Such an integrally
formed mixing block would function to mix the gases fed through the
precursor delivery ports, as would have been expected by one of ordinary
skill. While Appellants argue a mixing block made from multiple pieces of
material would result in each transition between adjoining pieces inhibiting
heat transfer across the block, Appellants directs us to no evidence in
support of this assertion or showing of the criticality of the argued heat
transfer characteristic. App. Br. 9; Ans. 11; see KSR Int 'l Co. v. Teleflex,
Inc., 550 U.S. 398, 417 (2007). That is, there is no persuasive evidence that
making the mixing block integral as claimed would have been beyond the
skill of one of ordinary skill in the art. In this regard, the claimed invention
merely applies the well-known technique of making various structural
features integral to yield predictable results. KSR Int'! Co., 550 U.S. at 416.
Appellants further argue Bailey and Lei do not teach the claimed 1st
and 2nd bores as chambers for receiving the gases fed from the precursor
delivery ports and the gases once they pass through the mixing element,
respectively. App. Br. 10-12.
We find this argument also unavailing. The Examiner found Bailey
discloses 1st and 2nd chambers that perform the functions of the claimed 1st
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Application 12/831,731
and 2nd chambers/bores. Non-Final Act. 5; Bailey Figure 4. Further,
Appellants acknowledge a bore can be formed by a variety of methods. Ans.
12-13; App. Br. 11. As noted by the Examiner, the patentability of a
product, such as a mixing block, does not depend on its method of
production, but on the product itself. Ans. 13. Thus, the evidence supports
Examiner's determination that Appellants do not point to any specific
process steps that define how the boring process constructs the claimed
mixing block in a manner that distinguishes it from the mixing block of the
prior art. Id.
Therefore, we affirm the Examiner's prior art rejections of claims 1-
13 and 17-21 under 3 5 U.S. C. § 103 (a) for the reasons presented by the
Examiner and given above.
ORDER
The Examiner's prior art rejections of claims 1-13 and 17-21 under
35 U.S.C. § 103(a) is affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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