Ex Parte Levy

Patent Trial and Appeal Board

Jan 31, 2019

11620744 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/620,744 01/08/2007
1333 7590 01/31/2019
EASTMAN KODAK COMPANY
PATENT LEGAL STAFF
343 STATE STREET
ROCHESTER, NY 14650-2201
FIRST NAMED INVENTOR
David H. Levy
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.
93218DAN 9841
EXAMINER
LUND, JEFFRIE ROBERT
ART UNIT PAPER NUMBER
1716
MAIL DATE DELIVERY MODE
01/31/2019 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 PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID H. LEVY
Appeal2018-000606
Application 11/620,744
Technology Center 1700
Before CATHERINE Q. TIMM, MONTE T. SQUIRE,
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1-12, 14, 16, 17, 21-23, 28-30,
35, 36, 38, 40, 41, 65- 69, 72, 73, and 75 - 78 of Application 11/620,744
under 35 U.S.C. §§ 102 and 103. Final Act. (July 22, 2016) 2-23.
Appellants 1 seek reversal of these rejections pursuant to 35 U.S.C. § 134(a).
We have jurisdiction under 35 U.S.C. § 6(b ).
For the reasons set forth below, we AFFIRM-IN-PART.
1 The real party in interest is identified as Eastman Kodak Company.
Appeal Br. 1.
Appeal2018-000606
Application 11/620,744
BACKGROUND
The present application generally relates to a process and apparatus
for the deposition of a thin film layer on a substrate "using a distribution
head directing simultaneous gas flows onto a substrate." Spec. 1, 1. 18. The
Specification teaches to use a series of gas flows comprising "at least a first
reactive gaseous material, an inert purge gas, and a second reactive gaseous
material." Id. at 11, 11. 22-23. The Specification further teaches that "[ o ]ne
or more of the gas flows provides a pressure that at least contributes to the
separation of the surface of the substrate from the face of the delivery head."
Id. at 11, 11. 25-27.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below:
1. A deposition system for thin film deposition of a solid
material onto a substrate comprising:
a) a plurality of sources for, respectively, a plurality
of gaseous materials comprising at least a first, a second,
and a third source for a first reactant gaseous material, a
second reactant gaseous material, and a third inert
gaseous material, respectively;
b) a delivery head for delivering the gaseous
materials to a substrate receiving thin film deposition and
compnsmg:
i) a plurality of inlet ports comprising at least a
first, a second, and a third inlet port for receiving
the first reactant gaseous material, the second
reactant gaseous material, and the third inert
gaseous material, respectively; and
ii) an output face comprising a plurality of
output openings and exhaust openings that face the
substrate, wherein the first reactant gaseous
material, the second reactant gaseous material, and
the third inert gaseous materials are simultaneously
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Application 11/620,744
supplied from the output openings in the output
face and exhausted from exhaust openings in the
output face with a gas flow of the first reactant
gaseous material and a gas flow of the second
reactant gaseous material being separated by a gas
flow of the third inert gaseous material, and
wherein pressure generated due to the gas flow of
one or more of the first reactant gaseous material,
the second reactant gaseous material, and the third
inert gaseous materials simultaneously supplied to
the substrate surface by the output openings and
exhausted from the substrate surface by the
exhaust openings forms a gas fluid bearing
between the output face of the delivery head and
the substrate surface that maintains separation of
the gas flow of the first reactant gaseous material
and the gas flow of the second reactant gaseous
material such that little or no intermixing occurs
between the first reactant gaseous material and the
second reactant gaseous material during thin film
deposition on the substrate surface and maintains a
substantially uniform distance between the output
face of the delivery head and the substrate surface
during thin film deposition on the substrate
surface.
Appeal Br. 18-19 (Claims App.) (reformatted for clarity).
REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1, 2, 5-8, 14, 16, 17, 21-23, 28-30, 36, 38, 41, 72, 73, and
75 are rejected under 35 U.S.C. § I02(e) (pre-AIA) as anticipated
by Devitt al. 2 Final Act. 2-6.
2 US 2007/0034228 Al, published Feb. 15, 2007) ("Devitt").
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Application 11/620,744
2. Claims 4, 40, and 76-78 3 are rejected under 35 U.S.C. § 103(a)
(pre-AIA) as obvious over Devitt. Id. at 6-8.
3. Claims 9, 11, 12, 35, 65, and 66 are rejected under 35 U.S.C. §
103(a) (pre-AIA) as obvious over Devitt in view ofYudovsky. 4
Id. at 9-10.
4. Claim 10 is rejected under 35 U.S.C. § 103(a) (pre-AIA) as
obvious over Devitt in view ofYudovsky and further in view of
Kamika wa et al. 5 Id. at 1 0-11.
5. Claims 67----69 are rejected under 35 U.S.C. § 103(a) (pre-AIA) as
obvious over Devitt in view ofDrage. 6 Id. at 11-13.
6. Claims 1, 2, 4--9, 11, 12, 14, 16, 17, 21-23, 28-30, 35, 38, 66, 72,
and 75-78 are rejected under 35 U.S.C. § 103(a) (pre-AIA) as
obvious over Yudovsky in view of Devitt. Id. at 13-19.
7. Claims 3 and 10 are rejected under 35 U.S.C. § 103(a) (pre-AIA)
as obvious over Yudovsky in view of Devitt and further in view of
Kamikawa. Id. at 19.
8. Claims 36 and 73 are rejected under 35 U.S.C. § 103(a) (pre-AIA)
as obvious over Yudovsky in view of Devitt and further in view of
Bok. 7 Id. at 20.
3 Claim 3 was originally included in this rejection but was withdrawn in the
Answer. See Answer 22.
4 US 2004/0067641 Al, published Apr. 8, 2004 ("Yudovsky").
5 JP403019318A, published Jan. 28, 1991 ("Kamikawa").
6 US 4,590,042 issued May 20, 1986 ("Drage").
7 US 4,575,408, issued Mar. 11, 1986 ("Bok").
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Application 11/620,744
9. Claims 67-69 are rejected under 35 U.S.C. § 103(a) (pre-AIA) as
obvious over Yudovsky in view of Devitt and further in view of
Drage. Id. at 20-23.
DISCUSSION
Rejection 1. The Examiner rejected claims 1, 2, 5-8, 14, 16, 17,
21-23, 28-30, 36, 38, 41, 72, 73, and 75 as anticipated by Devitt.
Devitt teaches a method and apparatus for cleaning, drying, coating,
baking, etching, and depositing surfaces onto a glass substrate as it
transitions through and between small gaps between hydrostatic porous
media bearings. Devitt, Abstract. Figure 2 of Devitt is reproduced below.
I \ \
1 \ • L \ \
/,,\ (0 (~
1._:.:..l :j ·~j
(i~~) _,,_..
/
/
Figure 2 of Devitt "is a schematic view of a multiple ... cleaning/drying/
etching operation for a solid substrate showing the vertically opposed
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Application 11/620,744
hydrostatic bearings, in an immediately sequential embodiment." Devitt
,r 46. Figure 2 depicts substrate 1, gaps 3, 4, hydrostatic bearings 14, 15,
which are supplied by channels 12, 13, and cleaning agent 10, 11. Id. ,r 55.
Appellant argues that Devitt does not anticipate because it does not
teach supplying "reactive gases to a substrate for thin-film deposition on the
substrate." Appeal Br. 5. In this regard, the Examiner determines that the
term "for thin-film deposition" is merely a statement of intended use. The
Examiner further determines both that a) "the specific type of gas is an
intended us[ e] of the apparatus and Devitt teaches that any gas can be
supplied to the apparatus including a coating gas," (Final Act. 3) and b) that
Devitt teaches a delivery head with an output face that "supplies reactive
gases 10, 11, 21, 22 to a substrate 3. (Figure 2)." Answer 26. We consider
the proper construction of the claim terms "thin film deposition" and
"reactive gases" below.
Construction of "Thin Film Deposition "
The Examiner determines that the term "deposition system for thin
film deposition of a solid material onto a substrate" as used in the preamble
should not be accorded patentable weight as it merely "recites the purpose of
a process ... where the body of the claim does not depend on the preamble
for completeness." Answer 23. The Examiner determines that the limitation
"for thin-film deposition on the substrate" is merely an intended use of the
apparatus. Id. at 26. The Examiner cites to case law which provides that
"[a]pparatus claims cover what a device is, not what a device does." Id.
(citing Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468
(Fed. Cir. 1990)).
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Application 11/620,744
In his Reply, Appellant points out that the term "thin film deposition"
is found both in the preamble and in the body of the claim. Accordingly,
Appellant argues, the "thin film deposition" language "provides more than
just context for the claimed invention and should be given patentable
weight." Reply Br. 2.
During examination, claim terms must be given their broadest
reasonable construction consistent with the Specification. In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). "Construing
claims broadly during prosecution is not unfair to the applicant ... because
the applicant has the opportunity to amend the claims to obtain more precise
claim coverage." See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004).
The patentability of an apparatus claim "depends on the claimed
structure, not on the use or purpose of that structure." Catalina Mktg. Int'! v.
Coo/savings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). "A patent
applicant is free to recite features of an apparatus either structurally or
functionally." In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997); In re
Swinehart, 439 F.2d 210,212 (CCPA 1971) ("there is nothing intrinsically
wrong with the use of [functional language] in drafting patent claims"). In
order to be accorded patentable weight, however, functional language in an
apparatus claim must limit the claim in terms of structure rather than
function. In re Schreiber, 128 F.3d at 1477-1478; see also MPEP § 2114
(Rev. 08.2017, January 2018). In cases in which functional language adds a
structural limitation to an apparatus claim, it does so because the language
describes something about the structure of the apparatus rather than merely
listing its intended or preferred uses. See, e.g., K-2 Corp. v. Salomon S.A.,
191 F.3d 1356, 1363 (Fed. Cir. 1999) ("[T]he functional language tells us
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Application 11/620,744
something about the structural requirements of the attachment between the
bootie and the base [ of an inline skate] .... ").
Further, a claim containing a "recitation with respect to the manner in
which a claimed apparatus is intended to be employed does not differentiate
the claimed apparatus from a prior art apparatus" if the prior art apparatus
teaches all the structural limitations of the claim. Ex parte Mas ham, 2
USPQ2d 1647 (BPAI 1987), 1987 WL 123826 *1.
Here, the phrase "thin film deposition" appears several times in claim
1 as follows:
A deposition system for thin film deposition of a solid
material onto a substrate comprising: ...
(b) a delivery head for delivering the gaseous materials to
a substrate receiving thin film deposition and comprising ...
(ii) an output face comprising a plurality of output
openings and exhaust openings that face the substrate
... wherein pressure generated due to the gas flow ...
forms a gas fluid bearing between the output face of
the delivery head and the substrate surface that
maintains separation of the gas flow ... such that
little or no intermixing occurs between the first
reactant gaseous material and the second reactant
gaseous material during thin film deposition on the
substrate surface and maintains a substantially
uniform distance between the output face of the
delivery head and the substrate surface during thin
film deposition on the substrate surface.
Appeal Br. 18 (Claims App.) ( claim 1) ( emphasis added).
The first use of "thin film deposition" occurs in the preamble and
describes the intended use of the deposition system. The second use of "thin
film deposition" describes the intended use of the delivery head. The third
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Application 11/620,744
use of the term concerns the claim's requirement that the gas flows form a
gas fluid bearing such that there is limited intermixing "during thin film
deposition." Similarly, the fourth use of the term concerns maintaining a
uniform distance between the output face and the substrate "during thin film
deposition."
The third and fourth uses of "thin film deposition" both concern
effects of the gas flows (limited intermixing and maintaining uniform
distance) that occur "during" the intended use of the apparatus.
It has long been held that "apparatus claims cover what a device is,
not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc!., 909
F.2d 1464, 1468 (Fed. Cir. 1990). An inventor of a structure (machine or
article of manufacture) is entitled to benefit from all of its uses, even those
not described, Roberts v. Ryer, 91 U.S. 150, 157 (1875), and conversely,
patentability of the structure cannot tum on the use or function of the
structure. In re Michlin, 256 F.2d 317, 320 (C.C.P.A. 1958) ("It is well
settled that patentability of apparatus claims must depend upon structural
limitations and not upon statements of function."). Therefore, the courts
have devised a test: Structures such as machines and articles of manufacture
must be distinguished from the prior art on the basis of structure, and where
there is reason to believe that the structure of the prior art is inherently
capable of performing the claimed function, the burden shifts to the
applicant to show that the claimed function patentably distinguishes the
claimed structure from the prior art structure. See In re Schreiber, 128 F.3d
1473, 1478 (Fed. Cir. 1997); In re Hallman, 655 F.2d 212,215 (CCPA
1981 ).
In view of all of the foregoing, we construe the claim to require a
device capable of limiting the intermixing of gases and maintaining a
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Application 11/620,744
uniform distance between delivery head and substrate during operation, we
do not construe performance of thin film deposition to be required by the
apparatus claim at issue.
Construction of "Reactant Gaseous Material" Limitations
Claim 1 includes several limitations that include the term "reactant
gaseous material." In each case, the claim recites a structural element ( a
source, an inlet port, output openings) for use with a reactant gas and the
intended result of supplying the reactant gas (e.g., limited intermixing and
maintenance of uniform distance between delivery head and substrate). The
system claim includes certain active verbs such as "forms" and "maintains"
that describe the effect of supplying the reactant gases.
In construing "reactant gaseous material" we apply the same
principles of law discussed above. In addition, we note that in Master Mine
Software v Microsoft Corp., the Federal Circuit construed a system claim
including active verbs. There, the court held that "[t]hough claim 8 includes
active verbs-presents, receives, and generates-these verbs represent
permissible functional language used to describe capabilities of the
'reporting module' .... the claims at issue here merely claim that the system
'possess[es] the recited structure [that is] capable of performing the recited
functions."' 874 F.3d 1307, 1315-1316 (Fed. Cir. 2017) (citing
Microprocessor Enhancement Corp. v. Tex. Instruments Inc., 520 F.3d 1367,
1375 (Fed. Cir. 2008)).
Considering the foregoing, we determine that the "reactant gaseous
material" limitations are not structural in nature. Rather, they describe the
material the system is intended to work on. The recitation of a material
intended to be worked upon by a claimed apparatus does not differentiate the
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Application 11/620,744
claimed apparatus structure from the structure of a prior art apparatus. In re
Rishoi, 197 F.2d 342, 345 (CCPA 1952). The claim does, however, require
structure sufficient to "form[ ] a gas fluid bearing" to limit intermixing of
other gases and to "maintain[ ]" a uniform distance between the delivery
head and a substrate during use.
Devitt 's Teachings Regarding Reactant Gases
We further address the Examiner's finding that Devitt "teaches the
claimed structure and is capable of functioning in the claimed manner."
Answer 26-27.
The Examiner finds that "Devitt clearly teaches a delivery head 5 with
an output face (bottom of head facing substrate) that specifically supplies
reactive gases 10, 11, 21, 22 to a substrate 3. (Figure 2)." Id. at 26. The
Examiner further finds that "Devitt teaches in paragraph 55 that the gas 21,
22 can be coating material or in paragraph 55 that the reactive gases can be
for CVD or PVD." Id.
Devitt teaches (in regard to Figure 2) that "[h]ydrostatic bearings 14,
15 supplied by channels 13, 12 generate sufficient pressure to prevent
cleaning agent 10, 11 from migrating in direction 2 of substrate travel into
chambers 16, 17." Devitt ,r 55. That is, gas supplied through bearings 14,
15 isolates the processes on either side. In the same paragraph, Devitt
provides "[ t ]he substrate 1 is then conveyed via hydrostatic bearing lands 18,
19 into axially displaced vertically disposed relative to one another,
chambers 22, 21 which supply the etchant, forced hot air, coating material[,]
etc[.] via channels 26, 27." Id. Devitt additionally teaches that etchant may
be substituted for the cleaning solution taught in connection with Figure 1.
Id. ,I 59.
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Devitt generally teaches that hydrostatic bearings may employ fluid or
gas. See, e.g., Devitt ,r 53 ("hydrostatic bearings 8, 9, which can be fluid or
gas in application"). Additionally, in the context of Figure 1, Devitt teaches
that bearing 5 ( on left of figure) may be "hydrostatic or aerostatic." Devitt ,r
53. The embodiment of Devitt depicted in Figure 1 may receive high
pressure gas through channels 10 and 11 (left part of figure), gas of any
pressure through channels 14 and 15 to bearings 8 and 9 (center of figure),
and high pressure gas through channels 18 and 19 (right portion of figure).
Id. ,r 57. The embodiment of Devitt depicted in Figure 2 is similar to Figure
1 but depicts a larger apparatus capable of "multiple stage" operations that
may be performed simultaneously. Devitt ,r 55. It includes additional gas
input channels and lower pressure exit channels.
In view of the foregoing, we determine that Devitt would have taught
a person of skill in the art a device capable of the simultaneous use of two
reactive gases (in two different "chambers") separated by an inert gas
(supplied through, e.g., bearings 14, 15).
Appellant presents a number of secondary arguments in support of
their broader argument that Devitt does not anticipate as it does not teach
thin film deposition. Appeal Br. 5-7. Appellant argues that Devitt does not
teach a simultaneous supply of reactive gases, id. at 5, and does not teach
coating with a gas, id. at 6. The Examiner has determined that "the specific
type of gas is an intended us[ e] of the apparatus and Devitt teaches that any
gas can be supplied to the apparatus including a coating gas." Final Act. 3.
Additionally, Devitt teaches that the operations of Figure 2 may be
performed "simultaneously." Devitt ,r 55. Accordingly, the Examiner has
determined that Devitt teaches a system capable of performing both of the
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Application 11/620,744
foregoing. See also Answer 27-28. Appellant has not shown error in regard
to the foregoing.
Appellant additionally argues that Devitt does not teach the
limitations required by claim 21. Claim 21 depends from claim 1 and
further requires that the "pressure that separates the surface of the substrate
from the face of the delivery head is provided substantially equally by all of
gas flows from the face of the delivery head."
As previously discussed, it is well settled that the recitation of a new
intended use for an old product does not make a claim to that old product
patentable. In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997. Here, the
provision of the pressure by various gas flows is a use of the claimed device,
not a structure.
In regard to claim 21, the Examiner found that Devitt teaches that "the
pressure that separates the surface of the substrate from the face of the
delivery head is provided substantially equally by all of gas flows from the
face of the delivery head." Final Act. 5 (citing Devitt ,r 57). The Examiner
further found that "[i]n order for the substrate to remain flat the substrate
must be supported by all of the gases equally. If they are not the substrate
will buckle and bend at the nonuniform pressure." Answer 32.
Appellant asserts error arguing that "[ n Jot all flows in the reference to
Devitt contribute equally to the separation of the surface of the substrate
from the face of the delivery head. The spacing in Devitt is primarily set by
the flow through the porous media bearing." Appeal Br. 7-8. This assertion
is not supported by citation to declaratory or other evidence. Accordingly,
even if claim 21 were to be construed as a structural limitation, Appellant's
assertion is mere attorney argument and is insufficient to rebut the
Examiner's findings.
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Appellant additionally argues that Devitt does not teach the
limitations required by claim 41. Id. at 8. Claim 41 depends from claim 1
and further requires that "a substrate holder is in contact with the substrate
during deposition and/or a means for conveying the substrate is in contact
with the substrate during deposition." Id. at 23 (Claims App.). The
Examiner finds that "[ t ]he substrate of Devitt moves, therefore ... a means
for conveying the substrate is in contact with the substrate during
deposition." Answer 32. The term "means for conveying the substrate" is a
means plus function limitation. 35 U.S.C. § 112 ,r 6 (pre-AIA).
Construing a means-plus-function claim term is a two-step process.
First, one must identify the claimed function. Noah Sys., Inc. v. Intuit Inc.,
675 F.3d 1302, 1311 (Fed. Cir. 2012). Second, one must determine what
structure, if any, disclosed in the specification corresponds to the claimed
function. Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1351 (Fed. Cir.
2015). Here, the claimed function is "conveying the substrate." The
corresponding structure in the Specification is described as follows: "It is
noted that, in the present deposition system, a substrate support or holder can
be in contact with the substrate during deposition, which substrate support
can be a means for conveying the substrate, for example a roller." Spec. 27
( emphasis added). Similarly, the Specification refers to "substrate support
74" as shown in Figure 15, reproduced below.
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z
x,... ___ f/Y
A
10
F1 20
Figure 15 "is a perspective view showing a distribution head used with a
substrate transport system." Spec. 14. The Specification teaches that
"motion in either the x or y direction, as shown in Figure 15, can be effected
either by movement of delivery head 10, or by movement of substrate 20
provided with a substrate support 74 that provides movement." Id. at 29.
The substrate support depicted in Figure 15 is a roller. Accordingly, the
structure corresponding to the claimed function ( conveying the substrate) is
a roller.
The Examiner does not cite to any portion of Devitt teaching a roller
as a substrate support. Nor does the Examiner make any findings that
Devitt's conveying means is an equivalent, as that term is used in 35 U.S.C.
§ 112 ,r 6, to a roller. Accordingly, we determine that claim 41 is not
anticipated by Devitt.
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Rejection 2. The Examiner rejected claims 4, 40, and 76-78 as
obvious over Devitt. 8 Final Act. 6-8.
Appellant offers only summary argument that "[t]he remaining claims
4, 40, and 76-78 set forth further features of the claimed thin film deposition
system that when taken together with the features of claim 1 and any
intervening claims are also not believed to be shown or suggested in Devitt."
Id. at 9.
Patent Office rules require that an appeal brief include the "arguments
of appellant with respect to each ground of rejection, and the basis therefor,
with citations of the statutes, regulations, authorities, and parts of the Record
relied on. The arguments shall explain why the examiner erred as to each
ground of rejection contested by appellant." 37 CPR§ 4I.37(c)(l)(iv).
Appellant's summary assertions regarding claims 4, 40, and 76-78 do not
comply with such requirement and are inadequate to present an argument for
consideration on appeal.
Rejection 3. The Examiner rejected claims 9, 11, 12, 35, 65, and 66
as obvious over Devitt in view of Yudovsky. Final Act. 9--10. Appellant
substantially relies upon their arguments presented in regard to Devitt, and
further argue that Yudovsky does not "correct the deficiencies of Devitt with
regard to the claimed invention." Appeal Br. 9. As we have not found such
previously presented arguments to be persuasive, we determine that
Appellant has not shown error in this regard.
8 The Examiner originally rejected claim 3 as obvious over Devitt. Final
Act. 6-7. This rejection was subsequently withdrawn. Answer 22.
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Appellant also briefly argues that a person of ordinary skill in the art
would not have been motivated to combine Devitt and Yudovsky as posited
by the Examiner. Id. Appellant, however, does not articulate any specific
error in the Examiner's stated reason to combine. As above, this is
inadequate to present an issue for appeal.
Rejection 4. The Examiner rejected claim 10 as obvious over Devitt
in view of Yudovsky and further in view ofKamikawa. Final Act. 10-11.
Appellant relies upon their previously presented arguments in support of
their appeal of the rejection of claim 10. Appeal Br. at 10. As we have not
found such arguments to be persuasive, we determine that Appellant has not
shown error in regard to the rejection of claim 10.
Rejection 5. The Examiner rejected claims 67----69 as obvious over
Devitt in view of Drage. Final Act. 11-13.
Claim 67 requires that a portion of the system of claim 1 includes a
"plurality of aperture plates, superposed to define a network of
interconnecting supply chambers and directing channels for routing each of
the first reactant gaseous material, the second reactant gaseous material, and
the third inert gaseous material." Claims 68 and 69 depend from claim 67
and, thus, include the same limitations.
In support of the rejection, the Examiner determined as follows:
Drage teaches a delivery device that includes at least a
portion of the delivery device is formed as a plurality of
apertured plates 12, 13, 14, superposed to define a network of
interconnecting supply chambers 21, 22, and directing channels
34, 35 for indirectly routing a gaseous materials from its
corresponding inlet port to its corresponding elongated emissive
channel 45; a diffuser 38; each plate additionally has an
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aperture 23, 24, 31, 32, 41,42, and 37 for exhaust gas; the
apertured plates are separable and independently fabricated (by
machining) prior to superposition when assembling (by
mechanical fasteners) the delivery device.
Final Act. 11.
First, Appellant argues that "[t]here is no disclosure or suggestion in
Drage of a delivery device that includes aperture plates to supply multiple
gases for thin film deposition." Appeal Br. 10. This is not directly
responsive to the Examiner's rejection. The Examiner relies upon Devitt as
teaching these limitations (regarding multiple gases). Accordingly,
Appellant has not shown error in this regard.
Appellant additionally argues that "Drage does not show or suggest a
plurality of apertured plates that are perpendicularly disposed with respect to
the output face as required by claim 68." Id. The Examiner concedes that
Drage does not include an explicit teaching in this regard, but finds that
"[t]he specific orientation of the apertured plates i.e. vertical or horizontal is
an obvious design choice as to which side ( top for horizontal or side for
vertical) the gas is supplied to." Final Act. 12. The Examiner determines
that "[t]he motivation for providing the plates in a vertical manner is to
provide an alternate orientation or shape of the plates." Id. Appellant does
not address the foregoing in their brief. Accordingly, Appellant has not
shown error in this regard.
Rejection 6. The Examiner rejected claims 1, 2, 4--9, 11, 12, 14, 16,
17, 21-23, 28-30, 35, 38, 66, 72, and 75-78 as obvious over Yudovsky in
view of Devitt.
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Yudovsky teaches "methods and apparatus for depositing materials on
a substrate surface." Yudovsky ,r 3. The apparatus of Yudovsky includes a
"shuttle 60 for carrying substrate 110. The shuttle 60 is movable in both
directions (as indicated by arrow 199)." Id. ,r 26. An excerpt of Figure 1 of
Yudovsky is reproduced below.
Figure 1 is a schematic side view of the cyclical layer deposition system of
Yudovsky. Yudovsky ,r 13. The excerpt of Figure 1 shown above depicts
shuttle 60, which is capable of moving side to side (as shown by arrow 199).
The Examiner determined that one of skill in the art would have had
reason to replace the shuttle 60 of Yudovsky with a fluid bearing as taught
by Devitt. Final Act. 15. The Examiner found that "[t]he motivation for
replacing the shuttle for carrying the substrates or supporting the head of
Yudovsky with the gas fluid bearing taught by Devitt is to improve
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temperature uniformity, reduce particle generation, prevent stress or physical
damage to the substrate, and other advantages known in the art." Id.
Appellant makes several arguments as to why one of skill in the art
would not have combined the teachings of Yudovsky and Devitt. First,
Appellant argues that Devitt does not contemplate thin film deposition,
accordingly, "one of ordinary skill in the art, after reading Yudovsky and
Devitt, and considering these references collectively, would not modify the
mechanically fixed and constrained deposition system of Yudovsky in order
to replace its inert non-floating process gas with the non-process gas
hydrostatic bearings taught by Devitt." Appeal Br. 12. In furtherance of this
argument, Appellant asserts as follows:
Id.
More particularly, one of ordinary skill in the art would not
provide a floating bearing in a sealed vacuumed enclosure as it
would defeat the purpose of having a floating bearing ... one of
ordinary skill in the art would readily understand that Yudovsky
would not operate properly ... if its inert non-floating process
gas, used to maintain separation of two reactive gasses, was
modified as taught by Devitt to be a non-process gas
hydrostatic bearing.
In response, the Examiner finds "there is no need to replace the inert
non-floating process gas with the non-process gas hydrostatic bearing gas
because these gases are the same gas (nitrogen), and they do the same job of
isolating the two reactive gases." Answer 35. This is supported by the
record. See Yudovsky ,r 35; Devitt ,r 55.
Appellant additionally argues that "one of ordinary skill in the art
would not provide a floating bearing in a sealed vacuumed enclosure as it
would defeat the purpose of having a floating bearing." Appeal Br. 12. In
response, the Examiner finds that "First, Applicant has not provided any
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evidence or argument why placing a floating bearing in a vacuum chamber
would defeat the purpose of the floating bearing. Second, floating bearing
are commonly used in vacuums." Answer 35. Indeed, it appears that both
Devitt and Yudovsky teach to evacuate used gases by vacuum or low-
pressure channels. Compare Devitt ,r 53 ("These two grooves are at a
substantially lower pressure ... possibly even near vacuum"), with
Yudovsky ,r 20 ("The vacuum ports are connected to a pumping system
configured to evacuate the gas streams out of the processing chamber.").
We adopt the Examiner's reasoning and stated rationale in this regard.
Appellant presents a third argument against the rejection over
Yudovsky in view of Devitt. Appellant argues that Yudovsky requires that
the distance between the deposition head and the substrate be 500 µm or
more while Devitt teaches that such distance "is on a micron level." Appeal
Br. 13. Although Appellant does not cite to any particular portion of Devitt
as supporting such assertion, Appellant seems to allude to Devitt's teaching
that use of a vacuum force "enables the substrate to be introduced to the slit
coater with micron level precision in the distance to the slit coater." Devitt
,r 37 ( emphasis added).
The Examiner determines that this statement concerns the precision
of the distance between the deposition head and the substrate, not the
distance itself. Answer 36-37. We adopt the Examiner's reasoning and
stated rationale in this regard. Appellant seeks to present new argument and
evidence on this point in the Reply Brief. Reply Br. 7. Appellant, however,
has not provided any explanation as to why such evidence was omitted from
the Appeal Brief. Accordingly, it will not be considered. See 37 CPR§§
41.33( d) (providing that new evidence will not be admitted except in limited
circumstances) and 41.41 (b )(2) (providing that new argument will not be
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considered by the Board absent a showing of good cause). Moreover,
Appellant has not set forth any reason that one of ordinary skill in the art
would not have made adjustments in the distance from head to substrate as
appropriate for the hypothetical combination. Accordingly, Appellant has
not shown that a person of ordinary skill in the art would have been unable
to combine the teachings of Devitt and Yudovsky.
Appellant similarly argues that because of the putative discrepancy in
the teachings of Yudovsky and Devitt regarding distance to the substrate,
"the disclosures of Yudovsky and Devitt teach away from their
combination." Appeal Br. 13. This argument is predicated upon an
interpretation of Devitt that we do not adopt. Accordingly, Appellant's
teaching away argument fails for the same reason as Appellant's previous
argument. Nor has Appellant set forth adequate evidence of teaching away.
Appellant relies upon previously presented arguments with regard to
it's the appeal of the rejection of claims 2, 4--9, 11, 12, 14, 16, 17, 21-23,
28-30, 35, 38, 66, 72, and 75-78. Id. at 14. As we have not found such
arguments to be persuasive, we determine that Appellant has not shown
error in regard to the rejection of these claims.
Appellant further argues that the rejection of claim 21 is in error as
Devitt does not teach that the pressure that separates the surface of the
substrate from the face of the delivery head is provided substantially equally
by all of the gas flows from the face of the delivery head. Id. at 14.
Appellant's argument is not supported by citation to declaratory or other
evidence. Accordingly, it is mere attorney argument and is insufficient to
re but the Examiner's findings regarding claim 21.
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Rejection 7. The Examiner rejected claims 3 and 10 as obvious over
Yudovsky in view of Devitt and further in view ofKamikawa. Appellant
relies upon previously presented arguments in support of the appeal of this
rejection. Appeal Br. 14. As we have not found such arguments to be
persuasive, we determine that Appellant has not shown error in regard to the
rejection of claims 3 and 10.
Rejection 8. The Examiner rejected claims 36 and 73 as obvious over
Yudovsky in view of Devitt and further in view of Bok. Claims 36 and 73
each require that gas pressure be applied against both a first surface of the
substrate and a second surface of the substrate. Appeal Br. 23, 25 (Claims
App.). The Examiner determines that "Bok teaches a second gas fluid
bearing that applies gas pressure against a second surface of the substrate
that lies opposite a first surface of the substrate that faces the delivery head."
Final Act. 20.
Appellant argues that this rejection is in error as follows:
there is no disclosure, teaching, or suggestion in Bok that would
lead one of ordinary skill in the art to conclude that a gas fluid
bearing could be established between the output face of a
delivery head and a substrate surface using one or more of the
first reactant, the second reactant, or the third inert gaseous
materials (process gasses) that maintains separation of the gas
flow of the first reactant gaseous material and the gas flow of
the second reactant gaseous material such that little or no
intermixing occurs between the first reactant gaseous material
and the second reactant gaseous material during thin film
deposition on the substrate surface.
Appeal Br. 15-16.
This is not responsive to the rejection. The Examiner does not rely
upon Bok as teaching the use of inert and reactive gases such that there is
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limited intermixing. Rather, the Examiner relies upon Devitt and Yudovsky
as teaching such claim elements. Answer 37. Accordingly, Appellant has
not shown error in regard to the rejection of claims 36 and 73.
Rejection 9. The Examiner rejected claims 67-69 as obvious over
Yudovsky in view of Devitt and further in view of Drage. Final Act. 20-23.
Claim 67 requires that a portion of the system of claim 1 includes a
"plurality of aperture plates, superposed to define a network of
interconnecting supply chambers and directing channels for routing each of
the first reactant gaseous material, the second reactant gaseous material, and
the third inert gaseous material." Claims 68 and 69 depend from claim 67
and, thus, include the same limitations.
In support of the rejection, the Examiner determined as follows:
Drage teaches a delivery device that includes at least a
portion of the delivery device is formed as a plurality of
apertured plates 12, 13, 14, superposed to define a network of
interconnecting supply chambers 21, 22, and directing channels
34, 35 for indirectly routing a gaseous materials from its
corresponding inlet port to its corresponding elongated emissive
channel 45; a diffuser 38; each plate additionally has an
aperture 23, 24, 31, 32, 41, 42, and 37 for exhaust gas; the
apertured plates are separable and independently fabricated (by
machining) prior to superposition when assembling (by
mechanical fasteners) the delivery device.
Final Act. 21.
First, Appellant argues that "[t]here is no disclosure or suggestion in
Drage of a delivery device that includes aperture plates to supply multiple
gases for thin film deposition." Appeal Br. 16. This is not directly
responsive to the Examiner's rejection. The Examiner relies upon Devitt
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and Yudovsky as teaching the limitations regarding the supply of multiple
gases. Accordingly, Appellant has not shown error in this regard.
Appellant additionally argues that "Drage does not show or suggest a
plurality of apertured plates that are perpendicularly disposed with respect to
the output face as required by claim 68." Id. The Examiner concedes that
Drage does not include an explicit teaching to this effect, but finds that
"[t]he specific orientation of the apertured plates i.e. vertical or horizontal is
an obvious design choice as to which side ( top for horizontal or side for
vertical) the gas is supplied to." Final Act. 21. The Examiner determines
that "[t]he motivation for providing the plates in a vertical manner is to
provide an alternate orientation or shape of the plates." Id. at 21-22.
Appellant does not address the foregoing in the brief. Accordingly,
Appellant has not shown error in this regard.
In addition to the foregoing, we adopt the findings and analysis of the
Examiner as set forth in the Final Office Action and the Examiner's Answer.
Any argument made by Appellants but not addressed in the foregoing is
deemed not to comply with 37 CPR§ 4I.37(c)(l)(iv).
CONCLUSION
The rejections of claims 1-12, 14, 16, 17, 21-23, 28-30, 35, 36, 38,
40, 65 - 69, 72, 73, and 75 - 78 are affirmed.
The rejection of claim 41 is reversed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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