Ex Parte Nallan et al

Board of Patent Appeals and Interferences

Jan 15, 2008

10338250 (B.P.A.I. Jan. 15, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PADMAPANI C. NALLAN, GUANGXIANG JIN,
and AJAY KUMAR
____________

Appeal 2007-2601
Application 10/338,250
Technology Center 1700
____________

Decided: January 15, 2008
____________

Before THOMAS A. WALTZ, CATHERINE Q. TIMM and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

This is in response to a Request, filed October 26, 2007, for rehearing
of our Decision, mailed August 27, 2007, wherein we sustained the § 103(a)
rejection of claims 1-3 and 22-26 as being unpatentable over Ono in view of
Arghavani and the § 103(a) rejection of claims 4 and 5 as being unpatentable
over Ono in view of Arghavani and Ji.
Appellants argue for the first time in this appeal that their
process and Ono’s process are not identical because Ono discloses
etching a polysilicon material, not a dielectric material (Request 1-2).
Appeal 2007-2601
Application 10/338,250

That the argument is made for the first time is evident from our
determination that Appellants had not disputed the Examiner’s finding
of identity (Decision 3). Appellants neither argue that our
determination was in error nor support such an argument by pointing
out where in the Brief and Reply Brief the Examiner’s finding was
disputed. In accordance with 37 C.F.R. § 41.52, because such a new
argument is not made regarding a “recent relevant decision of the
Board or a Federal Court” or in response to a new grounds of rejection
under § 41.50(b), Appellants’ newly advanced argument has not been
considered.
Regarding Appellants’ previously made argument that Ono
discloses that “etching does not develop,” (i.e., no etching occurs) but,
rather, deposition of reaction products occur when the RF bias is
turned off (Request 2), our adoption of the Examiner’s reasoning
(Ans. 6-7) and our explanation on pages 3-4 of the Decision respond
to this argument.
Appellants further argue that Ono and Appellants etch different
materials (i.e., polysilicon versus a dielectric material) and, thus, have
different processes, such that Appellants’ disclosure that deposition
occurs along with etching when the RF bias is turned off does not
contradict their argument that Ono’s etching does not develop when
the RF bias is turned off (Request 2). However, as noted above,
Appellants’ argument regarding the different materials (i.e.,
polysilicon versus a dielectric material) has not been considered
because it was presented for the first time in the Request for
Rehearing of this Appeal.
2
Appeal 2007-2601
Application 10/338,250

Furthermore, as explained in the Decision, Appellants disclose
that deposition of by-products on the surface 238 when the RF bias is
turned off may reduce or terminate the etching process (Decision 3-4),
which contradicts their argument that when Ono turns off the RF bias
no etching occurs (Request 2). Rather, like Appellants’ process, Ono
discloses that etching continues when the RF bias is turned off,
however, at a reduced etching rate due to competing deposition of by-
products.
For the above stated reasons, we adhere to our conclusions that
claims 1-3 and 22-26 are unpatentable under § 103(a) over Ono in
view of Arghavani, and claims 4 and 5 are unpatentable under §
103(a) over Ono in view of Arghavani and Ji.
The Request for Rehearing is denied.
DENIED

PL Initial
sld

MOSER IP LAW GROUP
1040 BROAD STREET, 2ND FLOOR
SHREWSBURY, NJ 07702
3