10944812 (B.P.A.I. Jun. 23, 2010)

Ex Parte Nakabayashi et al

Board of Patent Appeals and InterferencesJun 23, 2010

10944812 (B.P.A.I. Jun. 23, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte TETSUYA NAKABAYASHI, HITOSHI UJIMASA, KAZUYUKI ZAITSU, and MASAFUMI KOKURA ____________ Appeal 2009-013625 Application 10/944,812 Technology Center 1700 ____________ Decided: June 23, 2010 ____________ Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and PETER F. KRATZ, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1 and 11-16. We have jurisdiction under 35 U.S.C. § 6. We REVERSE. Appeal 2009-013625 Application 10/944,812 Claim 1 is illustrative: 1. A sputtering apparatus including: a susceptor which is a base of a substrate within a vacuum chamber in which a sputtering process is carried out for forming a thin film, said sputtering apparatus further comprising: a susceptor main body, and a stepped up portion provided over said susceptor main body to support said substrate from the bottom, the stepped up portion having a size smaller than said susceptor main body and said substrate, wherein the susceptor main body and the stepped up portion have a prescribed shape that does not bring an edge of the substrate into contact with an upper surface of the susceptor and does not cause an overdischarge between the edge of the substrate and the upper main surface of the susceptor main body, even when the substrate is warped due to a heat stress during a sputtering process. The Examiner relies upon the following references in the rejection of the appealed claims (Ans. 3). Ohkase 5,536,918 Jul. 16, 1996 Chen 5,837,058 Nov. 17, 1998 Appellants’ claimed invention is directed to a sputtering apparatus comprising a susceptor that has a main body and a stepped up portion over the main body which supports a substrate. The shape of the main body and stepped up portion of the susceptor allows for an edge of the substrate to not contact an upper surface of the susceptor. According to Appellants, “the main body and the stepped [up] portion of the susceptor in the sputtering apparatus must have a prescribed shape that does not bring the edge of the substrate into contact with the upper surface of the susceptor, so as to avoid overdischarge” (App. Br. 2, first para.). 2 Appeal 2009-013625 Application 10/944,812 Appealed claims 1 and 11-16 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Ohkase. Claims 1, 11, and 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Chen. Claims 12-15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Chen in view of Ohkase. We have thoroughly reviewed the respective positions advanced by Appellants and the Examiner. In so doing, we concur with Appellants that the Examiner’s rejections are not sustainable. We consider first the Examiner’s § 102 rejection of the appealed claims over Ohkase. We disagree with the Examiner that the claims’ recitation of “[a] sputtering apparatus” is properly “interpreted as matters of an intended use” (Ans. 4, third para.). The appealed claims define a sputtering apparatus which includes the recited components as well as other components that one of ordinary skill in the art would have considered to be essential for a sputtering apparatus. Contrary to the Examiner’s apparent reasoning, it is not necessary that the “body” of the claim recite all the components of a sputtering apparatus. The Examiner also maintains that the apparatus of Ohkase is “capable of being used as a sputtering apparatus wherein sputtering is generated by plasma, the substrate is the interior of the chamber and the substrate is the target” (id.). However, as urged by Appellants, Ohkase does not describe the disclosed apparatus as a sputtering apparatus and the Examiner has not presented the requisite factual support for the finding that the apparatus of Ohkase is capable of being used as a sputtering apparatus. The Examiner’s conclusory statement is no substitute for fact-based analysis. 3 Appeal 2009-013625 Application 10/944,812 The Examiner’s § 103 rejections over Chen alone and in combination with Ohkase suffer from the same faulty reasoning. Chen does not describe the disclosed apparatus as a sputtering apparatus and the Examiner has not presented the requisite factual support for the conclusion that the reference apparatus is capable of being used as a sputtering apparatus. In conclusion, based on the foregoing, we are constrained to reverse the Examiner’s rejections. REVERSED ssl BIRCH STEWART KOLASCH & BIRCH PO BOX 747 FALLS CHURCH, VA 22040-0747 4