Ex Parte Shim

Board of Patent Appeals and Interferences

Feb 7, 2008

10282304 (B.P.A.I. Feb. 7, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KYUNG-SIK SHIN
____________

Appeal 2008-1242
Application 10/282,304
Technology Center 1700
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Decided: February 7, 2008
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Before EDWARD C. KIMLIN, PETER F. KRATZ, and LINDA M.
GAUDETTE, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal from the Examiner’s final rejection of
claims 9-12 and 14-20, the only claims that remain pending in this
application. We have jurisdiction pursuant to 35 U.S.C. § 6.

Appeal 2008-1242
Application 10/282,304

Appellant’s claimed invention is directed to a chemical vapor
deposition (CVD) apparatus including a reaction chamber with a wafer
supporting member located therein and a particular arrangement of a
reaction gas supply outlet orientation, a purge gas supply unit, a ring-shaped
gas outlet positioned in the wafer support vicinity, which outlet extends
peripherally around the support member, a shielding layer positioned at the
gas outlet entrance that extends peripherally about the wafer-supporting
member, and which layer separates the gas outlet into separate upper and
lower parts. The shielding layer includes a distal end that extends toward
the wafer supporting member so that the distal end of the shielding layer is
closer to the wafer supporting member than the gas outlet. The shielding
layer allows for the separate flow of purge gases and reaction processing
gases via the separate parts thereof while such gases exit the reaction
chamber. Claim 9 is illustrative and reproduced below:
9. An apparatus for chemical vapor deposition (CVD) comprising:
a reaction chamber;
a wafer supporting member for mounting a wafer in the reaction
chamber;
a reaction gas supplying unit with at least one gas outlet oriented to
supply processing gas to the reaction chamber so that the processing gas
impinges on a wafer from above the wafer;
a purge gas supplying unit for supplying purge gas to the reaction
chamber;
a ring-shaped gas outlet positioned in the vicinity of the wafer
supporting member, and extending peripherally around the wafer supporting
member; and
a shielding layer positioned at an entrance of the gas outlet and
extending peripherally around the wafer supporting member, said shielding
layer separating the gas outlet into an upper part for reaction gas flow and a
lower part for purge gas flow so that the processing gas and the purge gas
may not be mixed during exhaustion of the gases,
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Application 10/282,304

wherein a distal end of the shielding layer extends toward the wafer
supporting member, so that the distal end of the shielding layer is closer to
the wafer supporting member than the gas outlet.

The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Fujioka 6,223,684 May 1, 2001
Takagi 5,972,116 Oct. 26, 1999

Claims 9-12, 14, and 18-20 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Takagi. Claims 15-17 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Takagi in view of Fujioka.
We reverse both rejections. Our reasoning follows.
The Examiner bears the initial burden of presenting a prima facie case
of unpatentability. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Concerning the anticipation rejection of claims 9-12, 14, and 18-20,
the Examiner has furnished a detailed accounting as to how the Examiner
considers the so rejected claims to read on Takagi, primarily focusing on an
embodiment as depicted in Figure 11 thereof (Ans. 3-7). However, our
review of Appellants’ claimed subject matter, Takagi, the Examiner’s
position in the Answer and Appellant’s contentions in opposition thereto in
the Brief leads us to conclude that the evidence relied upon by the
Examiner falls somewhat short of providing an anticipatory description of an
apparatus corresponding to Appellants’ claimed apparatus. In this regard, a
prior art reference must disclose every limitation of the claimed invention,
either explicitly or inherently to anticipate the claimed invention. In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
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Application 10/282,304

Here, as specified in independent claim 9, all of the rejected claims
require, inter alia, that the CVD apparatus gas outlet is not only ring-shaped
and extends peripherally around the called for wafer supporting element but
that the so constructed and arranged gas outlet has a shielding layer
positioned at an entrance thereof, which shielding layer itself extends
peripherally around the wafer supporting member separating the peripherally
extending ring-shaped gas outlet into upper and lower parts for separate gas
flow in each part and with the further proviso that a distal end of the
shielding layer extends toward (in the direction of) the wafer supporting
member such that the shielding layer distal end is located closer to the wafer
support member than the peripherally extending ring-shaped gas outlet.
We agree with Appellant’s non-anticipation position in that the
Examiner has not reasonably established that Takagi describes structure
corresponding to the claim 9 requirements for the gas outlet and shielding
layer, which both extend peripherally around the wafer support member and
define upper and lower parts in the peripherally extending ring-shaped gas
outlet for separate exit flow of process gases and purge gases for reasons
stated in the Brief and made plain by a review of Takagi. We note that the
much relied upon Figure 11 apparatus of Takagi is an example of a dual tube
apparatus wherein multiple wafers are treated and the reaction gas is
disclosed by Takagi as flowing from apertures (1e) and over the wafers (8)
before exiting via exhausting conduit (35). In this regard, Takagi explains
that in a multi-wafer optional embodiment, such as Figure 11 is directed to,
the reaction gas is introduced at one side portion of the outer tube of the dual

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tube apparatus and exits at the opposite side portion of such an outer tube
(col. 5, ll. 43-46). The outer tube of the dual tube apparatus in the relied
upon Figure 11 embodiment example is element 1a. Thus, we agree with
Appellant’s viewpoint concerning the lack of disclosure by Takagi of
Appellant’s claimed peripherally extending ring-shaped outlet having a
peripherally extending shielding layer associated therewith that defines
upper and lower parts in the peripherally extending ring-shaped gas outlet
for separate gas flow in those separate parts, as specifically recited in
rejected independent claim 9 (Br. 4-6).
As for the Examiner’s rebuttal attempt at establishing that Takagi
describes the claimed outlet and shielding layer structure, seemingly
employing an inherency theory (Ans. 11-14), we observe that the Examiner
has not reasonably discharged the burden of establishing that Takagi
inherently describes a gas outlet and shielding layer structure as required by
the rejected claims based on the Examiner’s manifold observations for the
reasons stated above and in the Brief. Like the Examiner, we are “confined”
by the applied Takagi disclosure; however, we are not “convinced” of an
anticipating disclosure therein as was the Examiner (Ans. 11). Indeed, a
comparison of the gas outlet (80) and shielding layer (85) as depicted in
Appellant’s drawing Figure 1A with the elements (1a, 4, 35, and 36) of
drawing Figure 11 of Takagi works to highlight the significant differences in
Appellant’s depicted structure and that of Takagi rather than the opposite, as
the Examiner seems to attempt in alleged support for the rejection (Ans. 11-
13).
The Examiner, in relying on a theory of inherency, must provide a
basis in fact and/or technical reasoning to reasonably support the
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determination that the allegedly inherent characteristics necessarily flow
from the teachings of the applied prior art. See In re Robertson, 169 F.3d
743, 745 (Fed. Cir. 1999). Here, the examiner has not provided persuasive
support for an inherency theory. Inherency cannot be established based on
conjecture and/or probabilities or possibilities. See In re Oelrich, 666 F.2d
578, 581 (CCPA 1981).
On this record, the Examiner simply has not made out a prima facie
case of anticipation for the so rejected claims. Accordingly, we reverse the
Examiner’s anticipation rejection.
As to the obviousness rejection of dependent claims 15-17, we
observe that the Examiner does not employ Fujioka to persuasively explain
how the combination of Fujioka with Takagi would have rendered obvious
to one of ordinary skill in the art the subject matter of independent claim 9,
which these separately rejected claims require based on their dependency on
claim 9 (Ans. 8-9). Given our determination above with respect to the
anticipation rejection, we agree with Appellant that the Examiner’s
obviousness rejection likewise fails to establish a prima-facie case of non-
patentability for the claimed subject matter. Accordingly, we reverse the
Examiner’s obviousness rejection.

CONCLUSION
The decision of the Examiner to reject claims 9-12, 14, and 18-20
under 35 U.S.C. § 102(b) as being anticipated by Takagi and to reject
claims 15-17 under 35 U.S.C. § 103(a) as being unpatentable over Takagi in
view of Fujioka is reversed.

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Application 10/282,304

REVERSED

tc

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