Ex Parte Spohn et al

Patent Trial and Appeal Board

Jan 29, 2013

12014194 (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.
12/014,194 01/15/2008 Ronald F. Spohn 21453-R1 1127
27182 7590 01/29/2013
PRAXAIR, INC.
LAW DEPARTMENT - M1-04
39 OLD RIDGEBURY ROAD
DANBURY, CT 06810-5113
EXAMINER
NAGPAUL, JYOTI
ART UNIT PAPER NUMBER
1773
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 RONALD F. SPOHN and DAVID WALTER PETERS
____________

Appeal 2012-001268
Application 12/014,194
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 2012-001268
Application 12/014,194

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 2 through 29. We have jurisdiction under 35 U.S.C. § 6.
Appellants’ invention is directed to a sweep vapor phase reagent
dispensing apparatus and method of using the apparatus to deliver a vapor
phase reagent to a deposition chamber. App. Br. 7-11. Claim 2 is
illustrative of the subject matter on appeal and is reproduced below:
2. A vapor phase reagent dispensing apparatus comprising:

a vessel which comprises a removable top wall member, a sidewall
member and a bottom wall member configured to form an internal vessel
compartment to hold a source chemical up to a fill level and to additionally
define an inner gas volume above the fill level;

said sidewall member having a protuberance that extends into the
internal vessel compartment adjacent to the top wall member;

said top wall member and said sidewall member having opposing flat
surfaces, wherein the opposing flat surfaces are optionally in contact with
one another;

fastening means for securing said top wall member to said sidewall
member through the opposing flat surfaces that are optionally in contact with
one another;

said top wall member and said protuberance having opposing flat
surfaces, wherein the opposing flat surfaces are not in contact with one
another and at least a portion of the opposing flat surfaces are hardened;

a metal seal aligned and in contact with the hardened opposing flat
surfaces of said top wall member and said protuberance;

said bottom wall member having a main floor surface containing a
sump cavity therein extending downwardly from the main floor surface, the
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Application 12/014,194

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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 through the inner gas volume into the
source chemical 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 source chemical 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 through the inner gas volume into the
source chemical 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
source chemical level sensor being located in noninterfering proximity to the
sub-floor surface of the sump cavity;

the temperature sensor being operatively arranged in the sump cavity
to determine the temperature of source chemical in the vessel, the source
chemical level sensor being operatively arranged in the sump cavity to
determine the level of source chemical in the vessel, the temperature sensor
and source chemical 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 source chemical level
sensor, and the temperature sensor and source chemical level sensor being in
source chemical flow communication in the sump cavity;

a non-centrally located portion of the top wall member having a
carrier gas feed inlet opening through which carrier gas can be fed into said
inner gas volume above the fill level to cause vapor of said source chemical
to become entrained in said carrier gas to produce vapor phase reagent; and

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Application 12/014,194

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a non-centrally located portion of the top wall member having a vapor
phase reagent outlet opening through which said vapor phase reagent can be
dispensed from said apparatus;

wherein said hardened opposing flat surfaces of said top wall member and
said protuberance are formed by incorporating a hardening material into said
opposing flat surfaces and wherein said hardened opposing flat surfaces of
said top wall member and said protuberance have a hardness greater than the
hardness of said metal seal.

Appellants, App. Br. 12, request review of the following
rejections from the Examiner’s final office action:
Claims 2-29 stand rejected under the nonstatutory obviousness-type
double patenting rejection as unpatentable over claims 2-24 of copending
Application No. 12/014,248.
Claims 2-29 stand rejected under the nonstatutory obviousness-type
double patenting rejection as unpatentable over claims 1-25 of copending
Application No. 12/014,270.
Claims 2-24 stand rejected under the nonstatutory obviousness-type
double patenting rejection as unpatentable over claims 1-20 of copending
Application No. 12/014,2821.
Claims 2-24 stand rejected under the nonstatutory obviousness-type
double patenting rejection as unpatentable over claims 1-25 of copending
Application No. 12/014,237.

1 Co-pending Application 12/014,282 issued as U.S. Patent No. 7,959,994
on June 14, 2011. Therefore, our discussion of this rejection will focus on
the claims in the U.S. Patent.
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Application 12/014,194

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Claims 2-29 stand rejected under the nonstatutory obviousness-type
double patenting rejection as unpatentable over claims 1-30 of copending
Application No. 12/014,228.
OPINION
The non-statutory obviousness-type double patenting rejection based on
copending Application No. 12/014,248

Appellants have not contested this rejection. App. Br. 15. Instead,
Appellants offer to make a determination of the need to file a terminal
disclaimer upon allowance of the claims of the instant application. Id.
Appellants do not cite any legal authority for the proposition that the
mere offer to file a terminal disclaimer overcomes a rejection based on the
judicially created doctrine of obviousness-type double patenting. Therefore,
we affirm this rejection for the reasons given by the Examiner. Ans. 5-9, 26.

The non-statutory obviousness-type double patenting rejections based on
copending Applications 12/014,270, 12/014,228,
12/014,282 and 12/014,237

The dispositive issue on appeal for these obvious-type double
patenting rejections is: Did the Examiner err in determining that Appellants’
claims 2-29 directed to a vapor phase reagent dispensing apparatus are not
patentably distinct from the apparatuses of claims 1-25 of copending
Application No. 12/014,270 and of 1-30 of copending Application No.
12/014,228 and that Appellants’ claims 2-24 are not patentably distinct from
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Application 12/014,194

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claims 1-20 of copending Application No. 12/014,282 and of claims 1-25 of
copending Application No. 12/014,237? 2, 3
We refer to the Examiner’s Answer for a statement of the Examiner’s
rejections (Ans. 9-26).
According to Appellants, modern chemical vapor deposition and
atomic layer deposition tools utilize ampoule systems to deliver precursor
chemicals to a deposition chamber. Spec. ¶ [0004]; App. Br. 13. 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. 13.
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 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

2 We will limit our discussion to independent claim 2 since Appellants have
not argued any of the claims separately.
3 Appellants have limited their arguments to the tube structure as the
distinguishing feature between the claimed apparatus and the apparatuses of
the copending Applications. Appellants have not argued the other structural
limitations of the claimed apparatus.
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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
14. 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. ¶ [0228].
Appellants’ claimed invention is directed to a sweep vapor phase
reagent dispensing apparatus. Appellants argue the claims of the copending
Applications are directed to either a bubbler vapor phase reagent dispensing
system (copending Applications 12/014, 270 and 12/014,228) (App. Br. at
15, 19) or a dip tube liquid phase reagent dispensing system (copending
Applications 12/014, 282 and 12/014,237) (id. at 17-18). Appellants
additionally argue that the copending Applications teach away from the
claimed invention by respectively disclosing only either a bubbler vapor
phase reagent dispensing system or a dip tube liquid phase reagent
dispensing system. Id. at 16-18, 20.
We are unpersuaded by Appellants’ arguments. As correctly noted by
the Examiner, the devices of the copending Applications include either a
bubbler tube or a dip tube while Appellants’ independent claim 2 does not
positively recite such a structure. Ans. 13, 19, 22, 26. However, as also
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Application 12/014,194

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correctly noted by the Examiner, Appellants’ independent claim 2 is written
in open language and does not exclude the inclusion of a tube that functions
as a bubbler tube or dip tube. Id. While Appellants argue that the claimed
sweep system and the copending Applications’ bubbler and dip tube systems
are completely different from one another (App. Br. 16, 17, 19, 20),
Appellants have not shown that the apparatuses of the copending
Applications are structurally different from that claimed. As set forth above,
in a sweep vapor phase reagent dispensing system, the combination of a
vapor phase precursor reagent and carrier gas are withdrawn from the
ampoule through an outlet opening. Likewise, a vapor phase reagent
dispensing system that utilizes a tube can also produce a combination of a
vapor phase precursor reagent and carrier gas that are withdrawn from the
ampoule through an outlet opening. It is well settled that language in an
apparatus claim directed to the function, operation, intent-of-use, and
materials upon which these apparatus components work, that does not
structurally limit the apparatus components or patentably differentiate the
claimed apparatus from an otherwise identical prior art apparatus, will not
support patentability. See, e.g., In re Rishoi, 197 F.2d 342, 344-45 (CCPA
1952); In re Otto, 312 F.2d 937, 940 (CCPA 1963); In re Ludtke, 441 F.2d
660, 663-64 (CCPA 1971); In re Yanush, 477 F.2d 958, 959 (CCPA 1973).
Accordingly, we sustain the rejections of claims 2-29 under the
nonstatutory obviousness-type double patenting rejections as unpatentable
over claims 1-25 of copending Application No. 12/014,270 and of 1-30 of
copending Application No. 12/014,228 for the reasons given above and
presented by the Examiner. We also sustain the rejections of claims 2-24
under the nonstatutory obviousness-type double patenting rejections as
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Application 12/014,194

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unpatentable over claims 1-20 of copending Application No. 12/014,282 and
of claims 1-25 of copending Application No. 12/014,237 for the reasons
given above and presented by the Examiner.
ORDER
The rejection of claims 2-29 based on the ground of non-statutory
obvious-type double patenting over 2-24 of copending Application No.
12/014,248 is affirmed.
The rejection of claims 2-29 based on the ground of non-statutory
obvious-type double patenting over claims 1-25 of copending Application
No. 12/014,270 is affirmed.
The rejection of claims 2-24 based on the ground of non-statutory
obvious-type double patenting over claims 1-20 of copending Application
No. 12/014,282 is affirmed.
The rejection of claims 2-24 based on the ground of non-statutory
obvious-type double patenting over claims 1-25 of copending Application
No. 12/014,237 is affirmed.
The rejection of claims 2-29 based on the ground of non-statutory
obvious-type double patenting over claims 1-30 of copending Application
No. 12/014,228 is affirmed.

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
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