Ex Parte Qian et al

Patent Trial and Appeal Board

Aug 13, 2018

14261893 (P.T.A.B. Aug. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/261,893 04/25/2014
61611 7590 08/15/2018
ROHM AND HAAS ELECTRONIC MATERIALS
CMP HOLDINGS, INC.
c/o E. I. du Pont de Nemours and Company
P. 0. Box 2915
Wilmington, DE 19805
Bainian Qian
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.
76218-US-NP 6738
EXAMINER
CHRISTIE, ROSS J
ART UNIT PAPER NUMBER
1731
NOTIFICATION DATE DELIVERY MODE
08/15/2018 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):
PTO-Legal.PRC@dupont.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BAINIAN QIAN and MARTY W. DEGROOT
Appeal2017-009354
Application 14/261,893
Technology Center 1700
Before LINDA M. GAUDETTE, DONNA M. PRAISS, and
BRIAND. RANGE, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1---6 and 11-16. App. Br. 9; Final Act. 3-15.
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
1 In this Decision, we refer to the Specification filed April 25, 2014
("Spec."), the Final Office Action entered February 26, 2016 ("Final Act."),
the Appeal Brief filed July 19, 2016 ("App. Br."), and the Examiner's
Answer entered December 19, 2016 ("Ans.").
2 The Appellants are the Applicants, Rohm and Haas Electronic Material
CMP Holdings, Inc. and Dow Global Technologies LLC, who are identified
as the real parties in interest and wholly owned subsidiaries of The Dow
Chemical Company. App. Br. 4.
Appeal2017-009354
Application 14/261,893
The invention relates to chemical mechanical polishing pads. Spec.
,r 1. Claims 1 and 5 are illustrative ( disputed limitations italicized):
1. A chemical mechanical polishing pad, comprising:
a polishing layer having a polishing surface, wherein the
polishing layer comprises a reaction product of ingredients,
compnsmg:
an isocyanate terminated urethane prepolymer
having 8.5 to 9.5 wt% unreacted NCO groups; and,
a curative system, comprising:
10 to 60 wt% of a high molecular weight
polyol curative, wherein the high molecular weight
polyol curative has a number average molecular
weight, MN, of 2,500 to 100,000; and wherein the
high molecular weight polyol curative has an
average of 5 to 7 hydroxyl groups per molecule;
and,
40 to 90 wt% of a difunctional curative.
5. The chemical mechanical polishing pad of claim 4,
wherein the isocyanate terminated urethane prepolymer has
8.95 to 9.25 [wt%] unreacted NCO groups.
App. Br. 16 (Claims Appendix). Claim 4 depends from claim 1 and further
recites values for the density, hardness, elongation to break, G' 30/90 ratio,
tensile modulus, wet cut rate, and a 300 mm TEOS removal rate to Shore D
hardness ratio of the recited polishing layer.
The Examiner maintains the following rejections under 35 U.S.C.
§ 103:
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1. Claims 1--4, 6, 11-14, and 16 over Kulp I3 in view ofFukuda4 and
Hutzler; 5 and
2. Claims 5 and 15 over Kulp I in view of Fukuda and Hutzler and
further in view of Kulp II. 6
Ans. 2, 11; Final Act. 3, 12-13.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence
produced thereon. See 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) ("it has long been the Board's practice to require an applicant to
identify the alleged error in the examiner's rejections")). After review of the
arguments and evidence presented by both Appellants and the Examiner, we
are not persuaded that the Examiner erred in rejecting claims 1---6 and 11-16
for the reasons stated in the Final Office Action and the Answer. We add
the following primarily for emphasis.
Rejection 1: Claim 1
The Examiner determines that claims 1--4, 6, 11-14, and 16 would
have been obvious to one of ordinary skill in the art at the time of the
invention for the reasons stated on pages 3-12 of the Final Office Action.
Appellants argue the claims as a group (App. Br. 10-14). Accordingly,
claims 2--4, 6, 11-14, and 16 will stand or fall with claim 1. 37 C.F.R.
§ 4I.37(c)(l)(iv).
3 Kulp, US 2005/0171225 Al, published Aug. 4, 2005 ("Kulp I").
4 Fukuda et al., US 2010/0029185 Al, published Feb. 4, 2010 ("Fukuda").
5 Hutzler et al., US 3,577,257, issued May 4, 1971 ("Hutzler").
6 Kulp et al., US 2010/0035529 Al, pub. Feb. 11, 2010 ("Kulp II").
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Application 14/261,893
Appellants contend that the Examiner erred in rejecting claim 1 over
the combination of Kulp I, Fukuda, and Hutzler because ( 1) Kulp I does not
disclose a curative that is a "high molecular weight polyol curative" as
required by the claim, (2) Hutzler does not remedy the deficiency of Kulp I,
(3) there is no teaching or suggestion to tum to the polyurethane floor
coating art of Hutzler for selecting formulations for use in chemical
mechanical polishing pads, (4) there is no teaching to indicate which
parameters are critical in the selection of any particular curative polyols
disclosed in Hutzler for use in the manufacture of a chemical mechanical
polishing pad, and ( 5) Fukuda is directed to polishing layer compositions
having an open cell structure (i.e., interconnected cells) rather than polishing
layers having closed cell structures as described in Kulp, therefore there is
no reasoned basis to modify the teachings of either Kulp I or Hutzler with
Fukuda for the amount of high molecular weight polyol curative and the
amount of difunctional curative present. App. Br. 10-12.
Appellants additionally argue that Fukuda teaches away from the use
of a high molecular weight polyol having 5 or more hydroxyl groups per
molecule because it discloses that "[ w ]hen the number of functional groups
is 5 or more, the degree of crosslinking of the thermosetting polyurethane
foam becomes so high that the foam becomes too brittle and the surface of a
material to be polishing is easily scratched." Id. at 13 (quoting Fukuda
,r 68). Appellants contend that, based on the prior art disclosures as a whole,
there is no "credible reason" for modifying the teachings of Kulp I, Fukuda,
and Hutzler to arrive at the claimed invention. Id.
The Examiner responds that both Hutzler and Kulp I are drawn to cast
polyurethane compositions, therefore a person having ordinary skill in the
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art at the time of the invention considering Appellants' problem of particular
percentages of specific constituents to make a successful, functioning
polyurethane composition would discover Hutzler's teachings. Ans. 15-16;
see also Final Act. 5---6. The Examiner further responds that Hutzler
explicitly teaches that brittleness and hardness are generally increased as the
amount of diisocyanate is increased or the molecular weight of the polyol is
reduced, thus Hutzler teaches that the molecular weight of the curative
polyol is a result-effective variable in the fabrication of a polyurethane
composition. Id. at 1 7. The Examiner additionally finds that Hutzler
provides guidance regarding specific aliphatic alcohols such as polyether
glycols of up to 5,000 or more molecular weight for use as the curative
pol yo 1, which falls within Appellants' claimed range, and preferred pol yo ls
having at least two hydroxyl groups sufficiently supports the claimed
hydroxyl groups per molecule range. Id. ( citing Hutzler 8:7-9); see also id.
at 20 (citing Hutzler 7:8-13, 8:7-9); Final Act. 5.
Regarding Fukuda being drawn to polishing layer compositions
suitable for polishing layers having an open cell structure, the Examiner
quotes paragraph 12 of Kulp I as evidence that Kulp I discloses multiple
embodiments including a mechanical frothing method just like the
mechanical frothing process explicitly taught by Fukuda to fabricate a
polyurethane composition having an open cell structure. Ans. 18-20. The
Examiner further responds that Fukuda's second invention is relied upon in
the disclosure of Fukuda rather than Fukuda's first invention discussed in
paragraph 21, which Appellants cite in support of its teaching away
argument. Ans. 22.
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Appellants' arguments are not persuasive of error because Appellants
do not adequately rebut the Examiner's findings (Ans. 17, 20; Final Act. 5)
that Hutzler does provide guidance regarding specific aliphatic alcohols of
up to 5,000 or more molecular weight for use as the curative polyol and
discloses preferred polyols having at least two hydroxyl groups. Nor do
Appellants adequately rebut the Examiner's findings (Ans. 17) that Hutzler
teaches the molecular weight of the curative polyol is a result-effective
variable and that brittleness and hardness are increased as the molecular
weight of the polyol is reduced. Appellants also do not adequately rebut the
Examiner's finding (Ans. 18-19) that Fukuda and Kulp I disclose the same
mechanical frothing method for forming polishing layers and, therefore, the
same open cell structure.
Appellants' assertions in the Appeal Brief that the combination of
Hutzler with Kulp I is improper because the references are directed to
different art and one skilled in the art of chemical mechanical polishing pads
would not look to the teachings of Hutzler regarding polyurethane overcoat
formulations are not supported by the preponderance of the evidence cited in
this appeal. The Examiner's finding that both Hutzler and Kulp I are drawn
to cast polyurethane compositions and that the problem of specific
constituents making up a functioning polyurethane composition would lead
the skilled artisan to the compositions of Hutzler and their properties are
supported by the record and not sufficiently rebutted by Appellants. Ans.
15-16; Final Act. 6; Hutzler 10:43-75; Kulp I (57), ,r 2.
Regarding the combination of the teachings of Kulp I with those of
Hutzler and Fukuda, we find the Examiner's reason for modifying Kulp I
with the teachings of Hutzler to be supported by Hutzler' s disclosure of
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specific functioning polyurethane compositions and that the composition is
useful for curing cast polyurethane compositions, therefore, the combination
is not based on improper hindsight. Final Act. 6; Ans. 21. Appellants'
argument (App. Br. 12-13) against the combination of the references based
on the exemplary application of Hutzler's polyurethane composition as a
flooring material is also unpersuasive because "[a] person of ordinary skill is
also a person of ordinary creativity, not an automaton." KSR Int'! Co. v.
Teleflex Inc., 550 U.S. 398,421 (2007). We consider the cited prior art as
representative of the level of ordinary skill in the art. See Okajima v.
Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) ("[T]he absence of specific
findings on the level of skill in the art does not give rise to reversible error
'where the prior art itself reflects an appropriate level and a need for
testimony is not shown"') (quoting Litton Indus. Prods., Inc. v. Solid State
Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985)).
Likewise, the Examiner's finding (Final Act. 6-7; Ans. 22) that a
skilled artisan would further modify the combination with the teachings of
Fukuda regarding the amount of high-molecular weight polyol curative and
the amount of difunctional curative based on the "Second Invention" in
Fukuda's disclosure is also supported by the record. Fukuda's disclosure in
paragraph 21 concerning a "First Invention" where the foam is said to
become too brittle when the number of functional groups is 5 or more does
not amount to a teaching away from the method of claim 1 because the cited
disclosure is a separate embodiment from the embodiment on which the
Examiner's rejection is based. See, e.g., In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004) ( explaining "[t]he prior art's mere disclosure of more than
one alternative does not constitute a teaching away from any of these
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alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed"). Moreover, paragraph 32 of
Fukuda concerning the "Second Invention" explicitly states that the
polyurethane is too brittle when the number of functional groups is greater
than 8. As such, we find unpersuasive Appellants' arguments that the
combination of prior art references is based on hindsight alone and that
Fukuda teaches away from the combination.
In sum, we are not persuaded by Appellants that the Examiner erred in
rejecting claim 1 over the combination of Kulp I, Fukuda, and Hutzler.
Rejection 2: Claim 5
The Examiner determines that claims 5 and 15 would have been
obvious to one of ordinary skill in the art at the time of the invention for the
reasons stated on pages 12-15 of the Final Office Action. Appellants argue
the claims as a group (App. Br. 14--15). Accordingly, claim 15 will stand or
fall with claim 5. 37 C.F.R. § 4I.37(c)(l)(iv).
Regarding claim 5, which indirectly depends from claim 1, Appellants
additionally contend that the Examiner erred because modifying the
teachings of Kulp I would defeat the explicit purpose of the Kulp I
formulations in that Kulp I provides controlling the unreacted NCO group
concentration at between 4.5 and 8.7 is critical and the Examiner's proposed
modifications would render Kulp I's formulations unsatisfactory for their
intended use in the manufacture of polishing layers. App. Br. 14--15.
The Examiner does not dispute the teachings of Kulp I, but, instead,
finds that Kulp II recognizes the known performance issue of polishing pads
and explicitly teaches how to successfully increase the weight percent of
unreacted NCO while avoiding the defective performance of the polishing
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pad previously associated with such weight percent unreacted NCO amounts
that Kulp I considered too high. Ans. 25 ( citing Kulp I ,r 11; Kulp II ,r,r 13,
17).
Appellants' arguments are not persuasive of error in the rejection of
claim 5 because Appellants argue the Kulp I reference individually and do
not address the rejection which is over the combination of not only Kulp I
with Hutzler and Fukuda, but also Kulp II. Appellants do not rebut the
Examiner's findings regarding Kulp II, which findings are supported by the
cited record in this appeal. Accordingly, we affirm the Examiner's rejection
of claim 5.
CONCLUSION
In sum, we affirm the Examiner's rejections of claims 1---6 and 11-16
as obvious over the cited prior art references.
DECISION
We affirm the Examiner's decision to reject claims 1---6 and 11-16 as
obvious under 35 U.S.C. § 103.
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
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