Ex Parte Rueger et al

Patent Trial and Appeal Board

Feb 12, 2016

12476059 (P.T.A.B. Feb. 12, 2016)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
12/476,059 06/01/2009 Neal Rueger MI22-4043 4700
21567 7590 02/12/2016
Wells St. John P.S.
601 W. Main Avenue
Suite 600
Spokane, WA 99201
EXAMINER
AU, BAC H
ART UNIT PAPER NUMBER
2822
MAIL DATE DELIVERY MODE
02/12/2016 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 TRIAL AND APPEAL BOARD
__________

Ex parte NEAL RUEGER
and JOHN SMYTHE
__________

Appeal 2014-002856
Application 12/476,059
Technology Center 2800
___________

Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
JAMES C. HOUSEL, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134 from a rejection of
claims 1–13 and 16–20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Representative claim 1 is reproduced below from the Claims Appendix of
the Appeal Brief dated July 19, 2013 (“Br.”). The limitations at issue are
italicized.
1. A method of forming a layer of Ru material by performing an
atomic layer deposition (ALD) process in a process chamber of a
process tool, the method comprising:
Appeal 2014-002856
Application 12/476,059

2

[1] identifying a target characteristic for said layer of Ru material,
the target characteristic being selected from the group consisting of
crystallinity and resistivity;
[2] determining a precursor pulse time for introducing a precursor
gas into said process chamber during said ALD process to produce
said target characteristic in said layer of Ru material; and
[3] performing said ALD process that comprises a plurality of steps
wherein said precursor gas is introduced into said chamber for said
determined precursor pulse time to thereby form said layer of
material, the method being performed in an absence of any added
oxygen.
Br. 16 (emphasis and brackets added).
The claims on appeal stand rejected as follows:
(1) claims 1–13 and 16–20 on the ground of non-statutory obviousness-
type double patenting over claims 1–11 of US 7,557,047 to Rueger et al. in view of
Aaltonen et al.;1
(2) claims 1–3, 5, 7, and 8 under 35 U.S.C. § 103(a) as unpatentable over
Aaltonen in view of Gandikota et al.;2
(3) claims 10, 11, 13, and 16 under 35 U.S.C. § 103(a) as unpatentable
over Aaltonen in view of Koh et al.;3
(4) claim 4 under 35 U.S.C. § 103(a) as unpatentable over Aaltonen in
view of Gandikota, and further in view of Kawano et al.;4
(5) claim 12 under 35 U.S.C. § 103(a) as unpatentable over Aaltonen in
view of Koh, and further in view of Kawano;

1 US 2005/0020060 A1, published January 27, 2005 (“Aaltonen”).
2 US 2006/0128150 A1, published June 15, 2006 (“Gandikota”).
3 US 2005/0037154 A1, published February 17, 2005 (“Koh”).
4 US 2003/0088116 A1, published May 8, 2003 (“Kawano”).
Appeal 2014-002856
Application 12/476,059

3

(6) claim 6 under 35 U.S.C. § 103(a) as unpatentable over Aaltonen in
view of Gandikota, and further in view of George et al.;5 and
(7) claim 9 under 35 U.S.C. § 103(a) as unpatentable over Aaltonen in
view of Gandikota, and further in view of Forbes et al.6
The Appellants do not direct us to any error in the Examiner’s factual
findings or legal conclusions in the non-statutory obviousness-type double
patenting rejection of claims 1–13 and 16–20. See Br. 9 (indicating that
“[r]esponse to the double patenting rejection is being postponed until an indication
of allowability of the subject matter of the claims is received”). Therefore, the
rejection is sustained for the reasons set forth in the Examiner’s Answer dated
October 22, 2013 (“Ans.”).
As for the remaining rejections based on 35 U.S.C. § 103(a), those rejections
are also sustained for the reasons set forth in the Examiner’s Answer. We add the
following for emphasis.
B. DISCUSSION
1. Claim 1
The Appellants argue that Aaltonen does not teach or suggest the order of
steps recited in claim 1 and does not provide motive for pre-selecting resistivity.
Br. 9.
There is no dispute on this record that Aaltonen does not expressly disclose
the steps of (1) identifying a target characteristic (i.e., crystallinity or resistivity)
for a layer of Ru material; (2) determining a precursor pulse time for introducing a
precursor gas into a process chamber during an ALD process to produce the target

5 US 2005/0012975 A1, published January 20, 2005 (“George”).
6 US 2005/0032342 A1, published February 10, 2005 (“Forbes”).
Appeal 2014-002856
Application 12/476,059

4

characteristic; and (3) performing the ALD process wherein the precursor gas is
introduced into the chamber for the determined precursor pulse time to form the
layer of material. Nonetheless, the Examiner finds Aaltonen expressly discloses a
relationship between the pulse time of a Ru precursor and the resistivity of the Ru
thin film formed. See Ans. 16; Aaltonen 6, Table 1 (disclosing resistivities of Ru
thin films produced by specific precursor pulse times). The Examiner finds:
One of ordinary skill in the art would clearly have relied on the data
presented by Aaltonen to perform the claimed method of claim 1 . . .
[and] would have certainly been motivated to form a layer of Ru
material having a desired (i.e., target) resistivity in order to obtained
[sic, obtain] an electrode with the desired conductive level and
performance.
Ans. 16. That is, one of ordinary skill in the art would have found it desirable to
use a previously determined precursor pulse time, as disclosed in Aaltonen Table
1, to form a Ru thin film having a known resistivity thereby saving time and
money. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”).
Significantly, the Appellants do not direct us to any error in the Examiner’s factual
findings.
Claim 1 also recites that the method recited in claim 1 is “performed in an
absence of any added oxygen.” Br. 16. The Examiner relies on Gandikota as
disclosing reducing agents other than oxygen. Ans. 10.
The Appellants do not direct us to any error in the Examiner’s findings as to
Gandikota. Rather, the Appellants argue that Aaltonen teaches away from using
reducing agents other than oxygen. Br. 10. We disagree. Aaltonen expressly
discloses that known reducing agents in ALD processes include, for example,
hydrogen. Aaltonen ¶ 9; Ans. 17. To the extent that Aaltonen discloses a
Appeal 2014-002856
Application 12/476,059

5

preference for oxygen (Aaltonen ¶ 18), as stated in In re Lamberti, 545 F.2d 747,
750 (CCPA 1976), “all disclosures of the prior art, including unpreferred
embodiments, must be considered.” See also Ans. 17.
2. Claim 7
Claim 7 depends from claim 1 and recites the additional step of “establishing
a ligand removal environment within said chamber.” Br. 17. The Appellants
argue that Aaltonen “burns the ligands into carbon oxides and water rather than
removing them intact.” Br. 11 (citing Aaltonen ¶ 18). Suffice it to say that claim 7
does not exclude burning the ligands as a means for removal. See In re Self, 671
F.2d 1344, 1348 (CCPA 1982) (patentability may not be based on limitations not
appearing in the claims).
3. Claim 10
Claim 10 recites a method of forming a layer of Ru material by performing
an ALD process in a process chamber comprising, inter alia, the steps of
evacuating the chamber during a first time period; introducing a precursor gas into
the chamber during a second time period; evacuating the chamber during a third
time period; and generating a plasma within the chamber by applying RF power to
the chamber during a fourth time period, “no RF power being applied during the
first, second and third time periods.” Br. 18 (emphasis added).
The Appellants argue that “[t]he cited combination of Koh and Aaltonen
does not suggest the claim 10 recited fourth time period having plasma without
precursor.” Br. 11 (emphasis added). However, claim 10 does not exclude a
precursor during the fourth time period. See Self, 671 F.2d at 1348 (patentability
may not be based on limitations not appearing in the claims).
The Appellants also argue:
Appeal 2014-002856
Application 12/476,059

6

[T]he time periods of Koh do not include any evacuation and
therefore do not correspond to the first[,] second and third time
periods of present claim 10. Nor does Koh contribute toward
suggesting the recited application of plasma during a fourth time
period after an evacuation time period.
Br. 12.
To the contrary, Koh Figure 5B illustrates an embodiment of the invention
wherein an evacuation time period is included before and after introduction of
second source gas 404a and before application of plasma 440a. See also Koh ¶ 71.
4. Claim 6
Claim 6 depends from claim 1 and recites “wherein said target characteristic
varies within a thickness of said layer of material.” Br. 17. The Examiner finds
George teaches this limitation. Ans. 14.
The Appellants argue:
George does not teach or suggest any Ru material and only varies
resistivity by varying the composition of the layer, not by varying the
precursor pulse times as recited in the instant claim.
Br. 13 (emphasis added).
It is of no moment that George may not disclose a Ru material. The
Examiner relies on George to show that one of ordinary skill in the art would have
known that “a target characteristic can be substantially uniform or can vary
throughout a thickness of [a] layer of material.” Ans. 14; see also In re Keller, 642
F.2d 413, 425 (CCPA 1981) (“test [for obviousness] is what the combined
teachings of the references would have suggested to those of ordinary skill in the
art”). Contrary to the Appellant’s argument, claim 6 does not recite that the target
characteristic is varied within a thickness of the layer by varying the precursor
pulse times. See Self, 671 F.2d at 1348 (patentability may not be based on
limitations not appearing in the claims).
Appeal 2014-002856
Application 12/476,059

7

The Appellants also argue that the Examiner “provides no motivation for
substituting one method for another, merely indicating the obviousness of doing
so” and the Examiner “recites advantages for which there is no support given.” Br.
13.
The Examiner makes the following factual findings and legal conclusions:
George . . . discloses and makes obvious where a target characteristic
can be substantially uniform or can vary throughout a thickness of
said layer of material. It would have been obvious to modify
Aaltonen to provide wherein said target characteristic varies within a
thickness of said layer of material. Because both references teach
methods of providing films of material using an atomic layer
deposition process, it would have been obvious to one skilled in the
art to substitute one method for the other to achieve the predictable
results of forming films with the required profile of the desired
characteristic by accurately controlling and varying the deposition
process within a layer or over thin adjacent layers within a film.
Ans. 14 (emphasis added).
Suffice it to say that the Appellants have not directly addressed the
Examiner’s factual findings or legal conclusions and shown reversible error
therein.
5. Claim 9
Claim 9 depends from claim 1 and recites the additional step of “generating
a plasma within said chamber by applying RF power to a showerhead within said
chamber.” Br. 17 (emphasis added).
The Appellants recognize that the Examiner relies on Forbes “as disclosing
applying RF power to a showerhead.” Br. 13. However, the Appellants argue that
the Examiner’s “indication of obviousness due to improved resulting film is not
supported by the references or by any factual basis presented in the Action.” Br.
14.
Appeal 2014-002856
Application 12/476,059

8

The Appellants’ argument is not persuasive of reversible error. Forbes
expressly discloses that a showerhead is capacitively coupled with an RF plasma
source in an ALD reactor and is “for uniform distribution of the reactant gases in
the reactor.” Forbes ¶ 34; see also Ans. 14. The Examiner finds that one of
ordinary skill in the art would have understood that uniform distribution of reactant
gases would improve the deposited film quality. Ans. 15. The Appellants have
failed to establish otherwise.
C. DECISION
The decision of the Examiner 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)(1).

AFFIRMED