Ex Parte Peters

Patent Trial and Appeal Board

Jan 29, 2013

11013434 (P.T.A.B. Jan. 29, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/013,434 12/17/2004 David Walter Peters 21453 1755
27182 7590 01/29/2013
PRAXAIR, INC.
LAW DEPARTMENT - M1-04
39 OLD RIDGEBURY ROAD
DANBURY, CT 06810-5113
EXAMINER
CHANDRA, SATISH
ART UNIT PAPER NUMBER
1716
MAIL DATE DELIVERY MODE
01/29/2013 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 AND TRIAL APPEAL BOARD
____________

Ex parte DAVID WALTER PETERS
____________

Appeal 2011-012537
Application 11/013,434
Technology Center 1700
____________

Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and
GRACE KARAFFA OBERMANN, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-012537
Application 11/013,434

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 1 through 14 and 21 through 23. We have jurisdiction under
35 U.S.C. § 6.
Appellant’s invention is directed to a sweep vapor phase reagent
dispensing apparatus used to deliver a vapor phase reagent to a deposition
chamber. App. Br. 7-9. Claim 1 is illustrative of the subject matter on
appeal and is reproduced below:
1. A vapor phase reagent dispensing apparatus consisting essentially of:

a vessel bounded on its upper end by a top wall member and on its
lower end by a bottom wall member to define therewithin an interior
volume;

the bottom wall member having a main floor surface containing a
sump cavity therein extending downwardly from the main floor surface, the
sump cavity being bounded at its lower end by a sub-floor surface, with at
least a portion of the sump cavity being centrally located on the bottom wall
member and at least a portion of the sump cavity being non-centrally located
on the bottom wall member;

a temperature sensor extending from an upper end exterior of the
vessel through a centrally located portion of the top wall member and
generally vertically downwardly into the interior volume of the vessel to a
lower end of that portion of the sump cavity centrally located on the bottom
wall member, with the lower end of the temperature sensor being located in
non-interfering proximity to the sub-floor surface of the sump cavity;

a liquid reagent level sensor extending from an upper end exterior of
the vessel through a non-centrally located portion of the top wall member
and generally vertically downwardly into the interior volume of the vessel to
a lower end of that portion of the sump cavity non-centrally located on the
bottom wall member, with the lower end of the liquid reagent level sensor
Appeal 2011-012537
Application 11/013,434

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being located in non-interfering proximity to the sub-floor surface of the
sump cavity; and

the temperature sensor being operatively arranged in the sump cavity
to determine the temperature of liquid reagent in the vessel, the liquid
reagent level sensor being operatively arranged in the sump cavity to
determine the level of liquid reagent in the vessel, the temperature sensor
and liquid reagent level sensor being located in non-interfering proximity to
each other in the sump cavity, with the lower end of the temperature sensor
being located at the same or closer proximity to the subfloor surface of the
sump cavity in relation to the lower end of the liquid reagent level sensor,
and the temperature sensor and liquid reagent level sensor being in liquid
reagent flow communication in the sump cavity.

The Examiner relied on the following references in rejecting the
appealed subject matter:
McMenamin US 4,436,674 March 13, 1984
Ban US 5,336,356 August 9, 1994
Bouchard US 6,077,356 June 20, 2000
Nguyen US 2004/0007581 A1 January 15, 2004

Appellant, App. Br. 10, requests review of the following
rejections from the Examiner’s final office action:
I. Claims 1, 3-10, 12, 13 and 21 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over McMenamin and Bouchard.
II. Claims 2, 14, 22 and 23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over McMenamin, Bouchard and Ban.
III. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over McMenamin, Bouchard and Nguyen.
IV. Claims 1-10, 12-14, and 21-23 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Ban, Bouchard and McMenamin.
V. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ban, Bouchard, McMenamin and Nguyen.
Appeal 2011-012537
Application 11/013,434

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OPINION
The dispositive issue for this appeal is: Did the Examiner err in
determining that the combination of McMenamin and Bouchard would have
led one skilled in the art to a vapor phase reagent dispensing apparatus as
required by the subject matter of independent claims 1 and 22? 1,2,
After thorough review of the respective positions provided by
Appellant and the Examiner, we answer this question in the negative and
AFFIRM for the reasons presented by the Examiner.
According to Appellant, modern chemical vapor deposition and
atomic layer deposition tools utilize ampoule systems to deliver precursor
chemicals to a deposition chamber. Spec. 1; App. Br. 11. The ampoule
systems can be categorized as sweep vapor phase reagent dispensing
systems, bubbler vapor phase reagent dispensing systems, and dip tube
liquid phase reagent dispensing systems. App. Br. 11.
The sweep vapor phase reagent dispensing system is described as
delivering the precursor reagent as a vapor by heating a liquid precursor
reagent source within the ampoule to vaporize at least a portion of the liquid
source, feeding a carrier gas into the ampoule through an inlet opening and
withdrawing the vapor phase precursor reagent and carrier gas from the
ampoule through an outlet opening. Id.
A bubbler vapor phase reagent dispensing system delivers the
precursor reagent as a vapor by heating a liquid precursor reagent source
within the ampoule to vaporize at least a portion of the liquid source, feeding

1 We focus our discussion on independent claim 1.
2 A discussion of Ban and Nguyen is unnecessary for disposition of the
present appeal. The Examiner relied upon these references for features not
related to the dispositive issue.
Appeal 2011-012537
Application 11/013,434

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a carrier gas into the ampoule through a bubbler tube extended into the
liquid source to near the bottom of the ampoule so that carrier gas exiting the
bubbler tube will bubble upwardly through the liquid source. Id. The vapor
phase precursor reagent and carrier gas are then withdrawn from the
ampoule through an outlet opening. Id.
A dip tube liquid phase reagent dispensing system differs from the
previously discussed systems in that a liquid phase precursor reagent instead
of a vapor phase precursor reagent is withdrawn from the ampoule. Id. at
12. In the dip tube liquid phase reagent dispensing system, an inert gas is
fed into the ampoule through an inlet opening to impose pressure on the
volume of liquid phase reagent in the ampoule. Id. The liquid phase reagent
is then withdrawn from the ampoule through a dip tube that extends from
near the bottom of the ampoule upwardly. Id. The pressurization of the
liquid phase reagent causes the liquid phase reagent to flow upwardly into
the dip tube for discharge into a vaporization unit. Spec. 3.
The Examiner found that McMenamin discloses a vapor phase reagent
dispensing apparatus comprising a vessel, a temperature sensor and a liquid
reagent level sensor. Ans. 5. The Examiner also found that McMenamin
does not disclose a vessel with a sump cavity and the temperature and level
sensors arranged as claimed. Id. The Examiner relies on Bouchard to teach
a sump cavity in a vessel used to supply vapor to a deposition chamber. Id.
at 6-7. The Examiner concluded that it would have been obvious to modify
the vessel of McMenamin to incorporate the sump cavity of Bouchard to
increase the liquid utilization in the vessel as taught by Bouchard. Id. at 7-8.
The Examiner also concluded that it would have been obvious to one skilled
in the art to arrange the temperature and level sensors as claimed because it
Appeal 2011-012537
Application 11/013,434

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would be a mere rearrangement of parts that do not modify the operation.
Id. at 8.
Appellant’s claimed invention is directed to a sweep vapor phase
reagent dispensing apparatus. App. Br. 7. Appellant argues that
McMenamin and Bouchard are directed to a bubbler vapor phase reagent
dispensing system (id. at 13) and a dip tube liquid phase reagent dispensing
system (id. at 14), respectively. Appellant argues that the Examiner relied
on improper hindsight in relying on McMenamin to meet the claimed
invention because McMenamin does not disclose the claimed internal
configuration for the bubbler device. Id. at 13. Appellant additionally
argues that McMenamin and Bouchard teach away from the claimed
invention because they include either a bubbler tube or a dip tube in their
ampoule configuration. Id. at 13-15. Appellant further argues that the
transitional language “consisting essentially of” in the claim distinguishes
the claimed invention from McMenamin by excluding the bubbler that
allegedly materially affects the novel characteristics of the claimed
dispensing device. Id. at 16.
We are unpersuaded by these arguments and agree with the
Examiner’s determination (Ans. 8) that one skilled in the art has the skill to
recognize that locating the level sensor at the lowest point of a vessel would
maximize the utilization of the liquid reagent within the vessel. See In re
Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (skill is presumed on the part of
one of ordinary skill in the art); In re Bozek, 416 F.2d 1385, 1390 (CCPA
1969). We are also unpersuaded by Appellant’s argument that the language
“consisting essentially of” in the claim distinguishes the claimed invention
from the device of McMenamin. App. Br. 16. As correctly noted by the
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Application 11/013,434

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Examiner, Appellant has not demonstrated that McMenamin’s additional
components would have materially different basic and novel characteristics
when used to supply a vapor phase reagent to a deposition chamber. Ans.
35.
While Appellant argues that Bouchard is directed to a liquid phase
reagent dispensing system (dip tube), Appellant has not adequately
explained why one skilled in the art would not have modified the internal
configuration of McMenamin in view of Bouchard’s teachings. Moreover,
Appellant’s arguments that McMenamin cannot be modified according to
Bouchard (App. Br. 12-13, 15) do not consider the Examiner’s reasoning for
combining the prior art. Our reviewing court has held that
[t]he test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.

In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant has not adequately
explained why the vessel of McMenamin’s vapor phase reagent dispensing
system could not be modified to incorporate locating the level sensor at the
lowest point of a vessel to maximize the utilization of the liquid reagent
within the vessel as taught by Bouchard.
Accordingly, we sustain the Examiner’s rejection of claims 1, 3-10,
12, 13 and 21 as unpatentable under 35 U.S.C. § 103(a) over McMenamin
and Bouchard.
The Examiner separately rejected claims 2, 14, 22 and 23 over
McMenamin, Bouchard and Ban and claim 11 over McMenamin, Bouchard
Appeal 2011-012537
Application 11/013,434

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and Nguyen. Ans. 16-18. The Examiner relied on the additional secondary
references to Ban and Nguyen to meet respective limitations of these claims.
Id. In addressing these separate rejections, Appellant relies on the
arguments presented when discussing independent claim 1. App. Br. 16-21.
Further, Appellant did not substantively address or further distinguish the
cited secondary references based on the additional limitations of the rejected
claims. Id. Therefore, we affirm these rejections for the reasons given
above and by the Examiner.
The Examiner also presented parallel rejections of claims 1-10, 12-14,
and 21-23 as unpatentable under 35 U.S.C. § 103(a) over Ban, Bouchard and
McMenamin and of claim 11 as unpatentable under 35 U.S.C. § 103(a) over
Ban, Bouchard, McMenamin and Nguyen3. Ans. 19-33. We note that the
prior art relied on by the Examiner in these rejections is the same as the prior
art discussed above and that Appellant’s line of argument for these rejections
repeats issues already addressed above. App. Br. 21-23. Therefore, we
direct Appellant’s attention to our prior discussion on those issues.
Accordingly, we sustain these rejections based on the same combination of
prior art for the reasons given above and presented by the Examiner.
ORDER
The rejection of claims 1 through 14 and 21 through 23 under
35 U.S.C. § 103(a) is affirmed.

3 For the parallel rejections, the Examiner relied on Ban as the primary
reference disclosing a vapor phase reagent dispensing apparatus comprising
a vessel and a temperature sensor. Ans. 19-20.
Appeal 2011-012537
Application 11/013,434

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TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED
bar