Ex Parte Merz et al

Patent Trial and Appeal Board

Sep 12, 2016

13556926 (P.T.A.B. Sep. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/556,926 07/24/2012
31824 7590 09/14/2016
MCDERMOTT WILL & EMERY LLP
The McDermott Building
500 North Capitol Street, N.W.
Washington, DC 20001
FIRST NAMED INVENTOR
Matthias Merz
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.
090922-0398 3516
EXAMINER
BRADLEY, STEPHEN M
ART UNIT PAPER NUMBER
2819
NOTIFICATION DATE DELIVERY MODE
09/14/2016 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):
mweipdocket@mwe.com
PTOL-90A (Rev. 04/07)
U-NITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHIAS MERZ, AURELIE HUMBERT,
ROEL DAAMEN, and DAVID TIO CASTRO
Appeal2014-009434
Application 13/556,926
Technology Center 2800
Before JOSEPH L. DIXON, JEFFREY A. STEPHENS, and
SCOTT B. HOWARD, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) from the
Examiner's Final Office Action ("Final Act.") rejecting claims 1-16, which
are all the claims pending in the application. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 The real party in interest is identified as NXP B.V. App. Br. 1.
Appeal2014-009434
Application 13/556,926
Claimed Subject Matter
The claimed invention generally relates to an integrated circuit ("IC")
with a gas sensor that can be readily provided using standard integrated
circuit manufacturing methods. Spec. 2:2-3. Claim 1, reproduced below, is
illustrative:
1. An integrated circuit comprising:
a substrate carrying a plurality of circuit elements;
a metallization stack interconnecting said circuit elements,
said metallization stack comprising a patterned upper
metallization layer comprising a first metal portion and a second
metal portion;
a passivation stack covering the metallization stack;
a gas sensor including a sensing material portion on the
passivation stack;
a first conductive portion extending through the
passivation stack connecting a first region of the sensing material
portion to the first metal portion; and
a second conductive portion extending through the
passivation stack connecting a second region of the sensing
material portion to the second metal portion.
Rejections
1. Claims 1, 2, 6, and 10 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Cummins. 2 Final Act. 2-3.
2. Claims 3 and 4 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Cummins and Patil et al.3 Final Act. 4.
2 US 2005/0218465 Al, published Oct. 6, 2005.
3 D.R. Patil, L.A. Patil, & D. P. Amalnerkar, Ethanol gas sensing
properties of Af2Q3-doped ZnO thickfilm resistors, Bull. Mater. Sci. vol. 30,
No. 6, pp. 553-59 (Dec. 2007).
2
Appeal2014-009434
Application 13/556,926
3. Claims 5 and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Cummins and Arana et al. 4 Final Act. 4--5.
4. Claims 7-9 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Cummins and Dimeo, Jr. et al. 5 Final Act. 5-7.
5. Claim 12 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Cummins. Final Act. 7-8.
6. Claim 13 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Cummins and Den et al. 6 Final Act. 8.
7. Claim 14 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Cummins and Fumeaux et al. 7 Final Act. 8-9.
8. Claim 16 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Cummins and Routkevitch et al. 8 Final Act. 9.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments (App. Br. 4--17; Reply Br. 1--4). We are not persuaded by
Appellants' arguments. We adopt as our own the findings and reasons set
forth by the Examiner in the action from which this appeal is taken, in the
Answer (see Ans. 2-8), and in the Advisory Action. We highlight and
address specific arguments and findings for emphasis as follows.
4 US 2005/0212066 Al, published Sept. 29, 2005.
5 US 7,296,458 B2, issued Nov. 20, 2007.
6 US 2006/0138394 Al, published June 29, 2006.
7 R. C. Fumeaux, W. R. Rigby, & A. P. Davidson, The formation of
controlled-porosity membranes from anodically oxidized aluminum, Nature
vol. 337, pp. 147--49 (Jan. 12, 1989).
8 US 2002/0118027 Al, published Aug. 29, 2002.
3
Appeal2014-009434
Application 13/556,926
Appellants argue Cummins does not disclose the "metallization stack"
interconnecting the circuit elements recited in claim 1. App. Br. 5.
Appellants acknowledge the Examiner's finding in the Advisory Action that
Cummins refers to element 42 as interconnect levels, but argue that the
Office Action refers to element 42(a), not "interconnect levels 42," and that
paragraph 73 of Cummins describes element 42(a) as "a porous low-K
silicon dioxide dielectric." App. Br. 5. Appellants contend element 43(a) in
Figure 3 (a) of Cummins cannot be the upper metallization layer because
43(a) is also silicon dioxide, and that the Examiner fails to identify anything
as equivalent to the claimed first and second metal portions. App. Br. 5.
The Examiner finds the "interconnect levels" described in paragraphs
73 and 7 5 of Cummins are understood in the art to be dielectric layers with
embedded conductors to electrically connect components of a lower level to
components on an upper level. Ans. 3. The Examiner provides an annotated
version of Figure 3 (a) of Cummins adding markings to show the
metallization stack and the first metal portion and second metal portion in an
upper layer. Ans. 3. The Examiner's annotated Figure 3(a) is reproduced
below:
4
Appeal2014-009434
Application 13/556,926
Annotated Figure 3(a) of Cummins depicts the Examiner's
identification of metal portions of layers 42 and 43 in
Cummins. Figure 3 (a) of Cummins is a cross-sectional view of
a single integrated chip manufactured in a single process in
which both the electronics and sensor components are
manufactured using standard complementary metal-oxide-
semiconductor (CMOS) processing techniques. Cummins
iTiT 50, 53, 68.
For the reasons provided by the Examiner, we agree with the
Examiner's findings that the identified portions of layers 42 and 43 in
Cummins constitute a metallization stack with "a patterned upper
metallization layer comprising a first metal portion and a second metal
portion," as recited in claim 1. Ans. 3--4. Appellants do not apprise us of
error in the Examiner's findings and explanation in the Answer regarding the
metallization stack. Appellants contend the first metal portion and second
metal portion are in the middle of a plurality of layers, and, thus, cannot be
5
Appeal2014-009434
Application 13/556,926
in the claimed "upper metallization layer," which Appellants argue is located
on top rather than disposed in the middle of a plurality of layers. Reply Br.
2. Appellants state that the first and second metal portions respectively
correspond to electrodes at the top of the entire stack. Id. We note,
however, that the first and second metal portions identified by the Examiner
are at the top of the metallization stack. Ans. 3. In addition, as indicated in
claim 1 and Appellants' Figure 2(h), other layers cover the metallization
stack, including its upper layer.
Appellants also argue one of ordinary skill in the art would not regard
layers of silicon dioxide as a "passivation stack" because Cummins uses
"passivation layer" for a silicon nitride (ShN4) layer. App. Br. 7 (citing
Cummins Fig. 2 (element 25), i-fi-1 81, 83). The Examiner finds the term
"passivation" within the art, as defined by Merriam-Webster means "to
protect (as a solid-state device) against contamination by coating or surface
treatment." Ans. 4. The Examiner further finds that Cummins's use of the
term "passivation" to describe a silicon nitride layer would not lead one of
ordinary skill in the art to regard a silicon dioxide layer as being incapable of
coating the metallization stack to protect against contamination, and notes
Appellants' Specification names silicon dioxide as a material included in a
passivation stack. Ans. 4 (citing Spec. 9: 1 ). Appellants do not refute the
Examiner's interpretation of passivation, but argue the Examiner ignores
Cummins' s definition of passivation layer 48 as a silicon nitride layer.
Reply Br. 2 (citing Cummins i1 81 ).
We agree with the Examiner's interpretation of passivation, and that
Appellants' Specification supports the finding that Cummins' s silicon
dioxide layer acts as a passivation stack by protecting against contamination.
6
Appeal2014-009434
Application 13/556,926
Ans. 4. Cummins's reference to a silicon nitride as a passivation layer
indicates other materials may similarly protect against contamination, but
does not contradict the Examiner's finding that Cummins's silicon dioxide
layer covering the identified metallization stack is a passivation stack. Ans.
3--4.
Appellants further contend the Examiner fails to identify a sensing
material portion on the passivation stack because the Examiner fails to
identify a passivation stack. App. Br. 7. As discussed above, we disagree
with Appellants' argument that the Examiner has not identified a passivation
stack. Thus, Appellants' arguments regarding the sensing material portion
do not apprise us of error in the Examiner's rejection.
In the Reply Brief, Appellants argue Cummins' s moisture-sensing
film 49 is not "on" the passivation layer 48 and that film 49 senses moisture,
not gas. In the absence of a showing of good cause by Appellants, we
decline to consider an argument raised for the first time in the Reply Brief,
unless it was necessitated by the Examiner's Answer. 37 C.F.R.
§ 41.41 (b )(2) (2012). Here, although Appellants refer to the Examiner's
Answer identifying sensing material portion 49 in Cummins (see Reply Br.
3), the Final Action similarly identifies element 49 in Cummins' s Figure
3(a) as the claimed sensing material portion (Final Act. 2). Appellants make
no showing of good cause on this record of a reason the arguments regarding
the sensing material portion could not have been presented in the Appeal
Brief. Therefore, such newly raised arguments are untimely and waived.
Even if we were to consider Appellants' arguments in the Reply Brief
regarding the sensing material portion, we note that ( 1) the broadest
reasonable interpretation of the term "on" would include a layer on top of
7
Appeal2014-009434
Application 13/556,926
another layer, even if not directly, (2) the Examiner finds the passivation
layer includes the material up to, but not including, layer 48 (Advisory Act.
2), and (3) Appellants' Specification expressly states that "[i]n the context of
the present invention, gas sensors may also include humidity sensors" (Spec.
2:24--25). Thus, Appellants' arguments, even if not waived, would not
apprise us of error in the Examiner's finding that Cummins discloses "a gas
sensor including a sensing material portion on the passivation stack," as
recited in claim 1.
Appellants argue that Cummins' s "finger like portions" identified by
the Examiner are capacitive and interdigitated, and thus do not connect,
because such a connection would short-circuit the capacitor. App. Br. 8.
Therefore, according to Appellants, Cummins' s interdigitated finger like
portions are not the "first conductive portion extending through the
passivation stack connecting a first region of the sensing material portion to
the first metal portion" or the "second conductive portion extending through
the passivation stack connecting a second region of the sensing material
portion to the second metal portion," as recited in claim 1. Id.
The Examiner finds the interdigitated electrodes 45 in Cummins are
not connected to each other as argued by Appellants, and explains using
annotated Figure 3 (a) and Figure 3 (b) of Cummins how one section of the
electrodes connects a first region of the sensing material portion to the first
metal portion and another section of the electrodes connects a second region
of the sensing material portion to the second metal portion. Ans. 5---6. We
agree with these findings. Appellants' argument that Cummins teaches
away from the claimed connections because a connection would short-circuit
the capacitor (Reply Br. 3) does not address the Examiner's findings that the
8
Appeal2014-009434
Application 13/556,926
two capacitive electrodes separately connect to their respective portions of
the sensing material and metal portions, as claimed.
Accordingly, for the reasons discussed above and by the Examiner,
we are not apprised of error in the Examiner's rejection of claim 1 under
35 U.S.C. § 102(b) as anticipated by Cummins. Thus, we sustain the
rejection of claim 1, and, for the same reasons, the rejection of claims 2-16,
which Appellants argue are patentable for the same reasons as claim 1 (App.
Br. 9-16).
DECISION
We affirm the Examiner's decision to reject claims 1-16.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
9