Ex Parte OGI

Patent Trials and Appeals Board

May 10, 2019

13279660 - (D) (P.T.A.B. May. 10, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/279,660 10/24/2011 TatsuyaOGI
23413 7590 05/14/2019
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
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.
BPL0122US 2754
EXAMINER
QUIGLEY, KYLE ROBERT
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
05/14/2019 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TATSUY A OGI
Appeal2018-003466
Application 13/279,660
Technology Center 2800
Before JAMES C. HOUSEL, MICHELLE N. ANKENBRAND, and
DEBRA L. DENNETT, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 16-21 under 35 U.S.C. § 103(a) as unpatentable
1 Our Decision refers to the Specification ("Spec.") filed October 24, 2011,
the Examiner's Non-Final Office Action ("Non-Final Act.") dated May 22,
2017, Appellant's Appeal Brief ("Appeal Br.") filed October 4, 2017, the
Examiner's Answer ("Ans.") dated December 20, 2017, and Appellant's
Reply Brief ("Reply Br.") filed February 14, 2018.
2 Appellant identifies Tokyo Electron Limited as the real party in interest
(Appeal Br. 3).
Appeal2018-003466
Application 13/279,660
over Cochran3 in view ofOgi, 4 Tomer, 5 Fujimoto, 6 and Cote. 7 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
STATEMENT OF THE CASE
The invention relates to a program for analyzing causes of
abnormality of a processing target, such as a wafer, after a plasma process
(Spec. 1: 15-16, 2 :23-25). The program is embodied on a non-transitory
computer-readable medium ("CRM").
Claim 16, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
16. A non-transitory computer-readable medium having
embodied thereon an abnormality analyzing program for
executing a function of analyzing a cause of abnormality of a
processing target that is processed by plasma in a plasma
processing system of a cluster type, the plasma processing
system processing a plurality of processing targets and
including a shipping container for the plurality of the
processing targets, two or more processing chambers, and two
or more different transfer paths leading to the two or more
processing chambers from the shipping container wherein each
of the processing targets is transferred from the shipping
container, transferred to one of the two or more processing
chambers, and returned to the shipping container after a plasma
process is finished, wherein the function of analyzing the cause
of abnormality comprises:
3 Cochran et al., US 2005/0174571 Al, published August 11, 2005
("Cochran").
4 Ogi, US 2006/0182533 Al, published August 17, 2006 ("Ogi").
5 Tomer et al., US 2005/0246124 Al, published November 3, 2005
("Tomer").
6 Fujimoto et al., JP 2008-294115, published December 4, 2008
("Fujimoto").
7 Cote et al., US 2010/0017010 Al, published January 21, 2010 ("Cote").
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Application 13/279,660
(a) after the plasma process is finished for each
individual processing target, recording on a storage unit a route
information about a transfer path and a processing chamber for
the each individual processing target, and a staying-time
information about a time during which the each individual
processing target has stayed in the transfer path and the
processing chamber, respectively, in relation with identification
information of the each individual processing target, wherein
the storage unit is separate to and apart from each of the
processing targets, the route information comprises a route
where the each individual processing target takes along the
transfer path and through the processing chamber, and the
staying-time information comprises a period of time when the
each individual processing target stays at the transfer path and
the processing chamber;
(b) after the plasma process is finished, testing the each
individual processing target to determine as to whether an
abnormality presents on the each individual processing-finished
target;
( c) recording the test result in (b ), in relation to
identification information of the each individual processing
target; and
( d) comparing the route information and the staying-time
information for a first processing target having an abnormality
with the route information and the staying-time information for
a second processing target having no abnormality to obtain a
difference in the route information and the staying-time
information for the first and second processing targets and thus
determine a source of the abnormality,
wherein the comparison in ( d) is configured to be
performed such that:
if it is determined that there is a difference between the
route information of the first processing target and the route
information of the second processing target, causes of
abnormality are analyzed based on the difference between the
route informations, and
if it is determined that there is no difference between the
route information of the first processing target and the route
information of the second processing target and determined that
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a difference between the staying-time information of the first
processing target and the staying-time information of the
second processing target exceeds a predetermined threshold
value for said difference between the staying-time informations,
causes of abnormality are analyzed based on said difference
between the staying-time informations, and
if it is determined that there is no difference between the
route information of the first processing target and the route
information of the second processing target and determined that
a difference between the staying-time information of the first
processing target and the staying-time information of the
second processing target does not exceed the predetermined
threshold value, causes of abnormality are analyzed as being
indistinct.
Remaining independent claim 17 recites an apparatus for analyzing a
cause of abnormality of a processing target that is processed by plasma in a
plasma processing system of a cluster type, comprising a recording unit, a
tester, and a controller for controlling the recording unit and tester to
perform a process similar to that recited within computer readable media
claim 16.
ANALYSIS
We review the appealed rejection for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
("[I]t has long been the Board's practice to require an applicant to identify
the alleged error in the examiner's rejections.")). After considering the
evidence presented in this Appeal and each of Appellant's arguments, we are
not persuaded that Appellant identifies reversible error. Thus, we affirm the
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Examiner's rejection for the reasons expressed in the Non-Final Office
Action and the Answer. We add the following primarily for emphasis.
Appellant argues claim 16 and relies on these same arguments for
claims 17-21. See generally, Appeal Br. Accordingly, we select claim 16
as the representative claim on which we focus in deciding this appeal as to
this rejection. 37 C.F.R. § 4I.37(c)(l)(iv) (2017).
The Examiner rejects claim 16 over the combined teachings of
Cochran, Ogi, Tomer, Fujimoto, and Cote. The Examiner finds that
Cochran discloses a non-transitory CRM having embodied thereon an
abnormality analyzing program for identifying and correlating
manufacturing defects to specific manufacturing paths or sources of origin
used in the manufacturing process. Non-Final Act. 3. The Examiner
acknowledges that Cochran fails to disclose that this abnormality analyzing
program is for analyzing a cause of abnormality of a processing target that is
processed by plasma in a plasma processing system of a cluster type as
recited in the preamble of claim 16. Id. For this feature, the Examiner finds
that Ogi discloses such a cluster type plasma processing apparatus and
concludes that it would have to use Cochran's abnormality analyzing
program with Ogi' s cluster type plasma processing system for identifying
and correlating defective wafers with the manufacturing paths that produced
them for troubleshooting the cause of the defects. Id. at 4--5.
The Examiner further acknowledges that Cochran fails to disclose that
staying-time information about a time during which each product has stayed
in a transfer path and a processing chamber is recorded. Non-Final Act. 6.
For this feature, the Examiner finds that Tomer discloses recording all
movements, vibrations, accelerations, and other selected physical parameters
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imposed upon a wafer during the time it is within a processing machine,
which inherently corresponds to the length of time a wafer is in a path and
machine. Id. The Examiner concludes that it would have been obvious to
modify Cochran's program to record this information in order to improve
tracking down the causes of abnormal processing conditions. Id.
The Examiner notes that Cochran's program, as modified in view of
Ogi and Tomer, fails to disclose identifying the cause of abnormality based
on whether or not a difference in staying-time information between
processing targets exceeds a predetermined threshold. Non-Final Act. 9.
For this feature, the Examiner finds that Fujimoto discloses comparing wafer
retention time or staying-time information to a predetermined threshold in
order to identify an abnormality or fault. Id. at 10. The Examiner concludes
that it would have been obvious to compare wafer staying-time information
to a predetermined threshold in Cochran's program in order to improve the
identification of the cause of abnormality, where such is associated with
such information as Fujimoto teaches. Id.
The Examiner next acknowledges that Cochran's program fails to
disclose identifying a cause of abnormality as indistinct when no difference
exists in route information and a difference between staying-time
information of processing targets does not exceed the predetermined
threshold. Non-Final Act. 11. However, the Examiner finds Cote discloses
defect analysis in which a cause of abnormality may require additional
samples and wafer analysis when no distinction is found. Id. The Examiner
concludes that it would have been obvious to recognize that the cause of
abnormality cannot be identified when the information used to identify the
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cause is inconclusive as a natural step in the abnormality analysis process as
Cote suggests. Id. at 12.
Appellant argues that Cochran's path merely depends on which
machine the product has passed through, whereas the claimed route depends
on not only which processing chamber the product has passed through, but
also which module the product has passed through. Appeal Br. 14.
This argument is not persuasive because claim 16 does not recite that
the product passes through a module, as well as a processing chamber.
Indeed, claim 16 merely requires that the route information be "about a
transfer path and a processing chamber for the each individual processing
target." Because claim 16 only requires two processing chambers and two
transfer paths to and from a shipping container, each transfer path may be
associated exclusively with only one of the two processing chambers,
meaning that the first transfer path is associated with the first processing
chamber one and the second transfer path is associated with the second
processing chamber two. This is precisely the arrangement that Appellant
admits that Cochran teaches. See id. Moreover, as the Examiner explains
(Ans. 4), Ogi teaches the same cluster-type wafer processing system as
recited in claim 16.
Appellant further argues the claimed invention neither needs to know
nor needs to determine how long other wafers have stayed in average at a
certain place as Fujimoto requires. Appeal Br. 15. Appellant contends that
"[t]he claimed invention merely requires to compare 'the difference between
the measured value of (i)[, the staying-time during which a first wafer
having an abnormality has stayed at a certain place,] and the measured value
of (ii)[, the staying-time during which a second wafer without an
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abnormality has stayed at the same certain place.]' with 'the threshold.'"
Id.; see also Reply Br. 5---6.
This argument is also not persuasive because, like Fujimoto, claim 16
requires that the difference between staying-times of the first and second
wafers is compared to a predetermined threshold value. As the Examiner
explains (Ans. 4--5), Fujimoto discloses that the threshold is based on the
statistical analysis of a number of processed wafers. Appellant fails to
describe how the predetermined threshold in claim 16 is calculated or
determined. Thus, claim 16 does not exclude determining the predetermined
threshold value by determining how long other wafers have stayed on
average at a certain place. Further, because Fujimoto's threshold is a
statistical standard deviation based threshold, Fujimoto inherently compares
the staying time information for a certain wafer with a statistical average
wafer to determine if the difference is within the selected standard deviation
range or threshold. Thus, Fujimoto's analysis process falls within the scope
of that of claim 16.
Appellant next argues that it is improper to combine the teachings of
Cochran and Fujimoto because "it is hard to suppose the notion of 'average'
with regard to the route information." Appeal Br. 18-19; see also Reply Br.
6, 12. This argument is also not persuasive because, as the Examiner
explains (Ans. 5), claim 16 does not recite that route information and
staying-time information are a set of information, and the rejection does not
require that the route information be averaged. Indeed, those of ordinary
skill in the art would have readily understood that route information would
not be averaged when applying Fujimoto's analysis process to Cochran's
process, as modified by Ogi. A person of ordinary skill in the art is also a
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person of ordinary creativity, not an automaton. KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 421 (2007). The obviousness analysis should take
account of "the inferences and creative steps that a person of ordinary skill
in the art would employ." Id. at 418.
In the Reply Brief, Appellant presents new arguments not raised in the
Appeal Brief that Cochran, which processes and physically marks food cans,
is too different in nature from Ogi, Tomer, Fujimoto, and Cote, which
process semiconductor wafers. Reply Br. 9. Under regulations governing
appeals to the Board, we will not consider any new argument not timely
presented in the Appeal Brief 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, 1476-77
(BPAI 2010) (informative); see also 37 C.F.R. §§ 41.37, 41.41. Appellant
has provided this record with no such showing. Therefore, we will not
consider this new argument in the Reply Brief.
Accordingly, we sustain the Examiner's obviousness rejection of
claims 16-21 over the combined teachings of Cochran, Ogi, Tomer,
Fujimoto, and Cote. 8
8 Appellant directs our attention to caselaw emphasizing that impermissible
hindsight and lack of a predictable result may be the bases for
nonobviousness. See Appeal Br. 19. In addition, Appellant directs our
attention to MPEP §§ 2143.0l(V) and (VI). Id. at 19-20. These citations,
standing alone, do not amount to separate arguments meriting separate
consideration. Moreover, although Appellant argues that Ogi and Cote
cannot cure the alleged deficiencies of Cochran and Fujimoto, Appellant
fails to provide any substantive explanation or evidence in support of this
"argument." See Appeal Br. 20. Therefore, this "argument" does not merit
separate consideration. See, e.g., In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) ("[W]e hold that the Board reasonably interpreted Rule 41.37 to
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DECISION
Upon consideration of the record, and for the reasons given above and
in the Non-Final Office Action and the Examiner's Answer, the decision of
the Examiner rejecting claims 16-21 is affirmed.
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
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art.").
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