Ex Parte Strang

Board of Patent Appeals and Interferences

Jul 28, 2011

10469592 (B.P.A.I. Jul. 28, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ERIC J. STRANG
__________

Appeal 2010-005966
Application 10/469,592
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, CHUNG K. PAK, and
CATHERINE Q. TIMM, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON REHEARING

The Appellant requests rehearing of a DECISION ON APPEAL dated
March 31, 2011,
1
affirming the Examiner’s decision that claims 1-5, 7-16, 20, 21,
and 23-27 are unpatentable over the prior art of record.
On rehearing, the Appellant argues that the Board relied on a different
rationale in affirming the Examiner’s decision. Thus, the Appellant requests that

1
Hereinafter “Decision.”
Appeal 2010-005966
Application 10/469,592

2

the Examiner’s decision be reversed and the Board’s affirmance be denominated a
new ground of rejection. For the reasons set forth below, the request is
GRANTED-IN-PART.
I.
In the Decision, the Board concluded that the combined teachings of
Hanazaki and Tomoyasu render obvious the claimed controller programmed to
cause the flow rates recited in claims 1 and 12, i.e., a continuous flow having a
flow rate of 100-500 sccm and a pulsed flow wherein each pulse has a flow rate of
1,000-10,000 sccm. In particular, the Board found that Tomoyasu discloses that
flow rate affects etch process performance, i.e., etching rate, etching selectivity,
etched shape, and process uniformity. Thus, the Board concluded that the flow
rates recited in claims 1 and 12 would have been prima facie obvious to one of
ordinary skill in the art in view of the teachings of Tomoyasu. Decision 6-7.
On rehearing, the Appellant does not dispute that Tomoyasu discloses that
flow rate effects a change in various semiconductor process characteristics such as
etch rate, etch selectivity, etch shape, and process uniformity. Rather, the
Appellant argues that Tomoyasu does not explicitly disclose the Appellant’s
desired result of improved processing within high aspect ratio features and thus,
“does not teach flow rate as a result effective variable which could support the
Obvious conclusion.” Request 2.
In the Decision, the Board pointed out that the Appellant discloses that
pulsed flow not only improves deposition within high aspect ratio features but also
improves etch process performance. Spec., p. 5, ll. 23-27. The Board explained
that Tomoyasu, like the Appellant, discloses that flow rate affects etch process
performance, i.e., etching rate, etching selectivity, etched shape, and process
uniformity. Decision 6.
Appeal 2010-005966
Application 10/469,592

3

On rehearing, the Appellant argues that the Examiner took the position that
the teachings of Tomoyasu are sufficient to support a conclusion of obviousness
“because Tomoyasu impliedly discloses that the improvements in processing of
high aspect ratio features also results from [optimizing etch rate, etch selectivity,
and etch shape].” Request 2, 4. However, the Appellant argues that the Board
now places emphasis on the “improves etch process performance” language in the
Specification.
2
Request 4.
Significantly, the Examiner found that flow rate is a result effective variable
in semiconductor processing, i.e., flow rate effects a change in etch rate, etch
selectivity, etch shape, and process uniformity. Ans. 6, 13, 17. The Examiner did
not need to draw the additional conclusion that “the capability to provide improved
high aspect ratio features is necessarily linked to each of etch rate, etch selectivity,
etch shape, which are disclosed.” Ans. 18. Likewise, the Board, in its Decision,
did not need to rely on the “improves etch process performance” language in the
Specification to conclude that the claimed subject matter is prima facie obvious in
view of the prior art of record. Decision 6-7.
In other words, it is of no moment that Tomoyasu may not disclose the same
effect as the Appellants (i.e., improving processing within high aspect ratio
features) where the preponderance of the evidence establishes that flow rate is a
result effective variable in semiconductor processing.
3
See In re Antonie, 559 F.2d
618, 620 (CCPA 1977) (the discovery of an optimum value of a result effective
variable in a known process is ordinarily within the skill of the art)

2
On rehearing, the Appellant argues that the Specification discloses that the
claimed flow rate improves deposition and etch process performance within high
aspect ratio features. Request 3-4.
3
We note that the Appellant did not direct us to any evidence of unexpected results
to rebut the prima facie case of obviousness.
Appeal 2010-005966
Application 10/469,592

4

II.
Upon consideration of the Appellant’s request for rehearing, it is
ORDERED that the Examiner’s rejection of claims 1-5, 7-16, 20, 21,
and 23-27 under 35 U.S.C. § 103 over the prior art of record is affirmed and
denominated a new ground of rejection, and it is
FURTHER ORDERED that this Decision on Rehearing incorporates
the Decision on Appeal dated March 31, 2011, in its entirety, and it is
FURTHER ORDERED that the Appellant may reopen prosecution or
request rehearing under 37 C.F.R. § 41.50(b) (2010) in response to this Decision
on Rehearing, and it is
FURTHER ORDERED that no time period for taking any subsequent
action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)
(2010).

GRANTED-IN-PART

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