Ex Parte Thomas et al

Patent Trial and Appeal Board

Oct 31, 2012

11835618 (P.T.A.B. Oct. 31, 2012)

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.
11/835,618 08/08/2007 Owain Peredur THOMAS 127963.0101 1741
27557 7590 11/01/2012
BLANK ROME LLP
WATERGATE
600 NEW HAMPSHIRE AVENUE, N.W.
WASHINGTON, DC 20037
EXAMINER
DHINGRA, RAKESH KUMAR
ART UNIT PAPER NUMBER
1716
MAIL DATE DELIVERY MODE
11/01/2012 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 OWAIN PEREDUR THOMAS, ANDREW JOHN VASSILIOS
and MICHAEL JOSEPH COOKE
____________

Appeal 2011-009998
Application 11/835,618
Technology Center 1700
____________

Before HUBERT C. LORIN, JEFFREY T. SMITH, and
LINDA M. GAUDETTE, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-009998
Application 11/835,618

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the Examiner’s final
decision rejecting claims 1 and 5 through 28. We have jurisdiction under
35 U.S.C. § 6.
Appellants’ claimed invention relates to a plasma surface processing
apparatus. App. Br. 3. Claim 1 is illustrative:
1. A surface processing apparatus for use in the surface
processing of a substrate, the surface processing apparatus
comprising:
a plasma source; and
a processing chamber in which a substrate is mounted in
use, the processing chamber being operatively connected to the
plasma source;
the surface processing apparatus characterised by:
a transmission plate for the transmission of plasma in use
between the plasma source and processing chamber, the
transmission plate comprising one or more circular apertures
wherein the ratio of the diameter of the apertures to the
thickness of the transmission plate is greater than 3:1 and
wherein the physical form of the one or more apertures and/or
the distribution of the one or more apertures is adapted to
provide a predetermined processing pattern upon the surface of
the substrate.
The Examiner relied on the following references in rejecting the
appealed subject matter:

Blalock US 5,783,100 July 21, 1998
van Os US 5,792,272 August 11, 1998
Koshimizu US 6,162,323 December 19, 2000
Luo US 6,335,293 B1 January 1, 2002
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Yuda US 6,663,715 B1 December 16, 2003
Uchiyama US 2005/0194097 A1 September 8, 2005
Todorow US 2006/0000805 A1 January 5, 2006
Kanarov US 7,183,716 B2 February 27, 2007

Eric R. Keiter & Mark J. Kushner, Radical and Electron Densities in
a High Density -Chemical Vapor Deposition Reactor from a Three
Dimensional Simulation 27 IEEE TRANSACTIONS ON PLASMA SCI. 62
(1999).
L. A. GOCHBERG & R. L. KINDER, LOW PRESSURE DEPOSITION IN A
HIGH DENSITY PLASMA CVD REACTOR (M. S. Ivanov & A. K. Rebrov
eds) (2007).
Appellants request review of the following rejections (see App.
Br. generally) from the Examiner’s final office action1:
1. Claims 1, 5-7, 11-14, 16-20,22, 24, 25 and 28 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Todorow and Kanarov.
2. Claims 1 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yuda and Kanarov.
3. Claims 1, 21 and 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Blalock and Kanarov.
4. Claims 8-10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Todorow, Kanarov and Uchiyama.
5. Claim 23 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Todorow, Kanarov and Luo.
6. Claims 26 and 27 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Todorow, Kanarov and Koshimizu.

1 The listing of rejections for review on appeal reflects the rejections
presented by the Examiner. See Answer, generally.
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Application 11/835,618

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OPINION
As a preliminary matter, we find the primary references to Todorow,
Yuda and Blalock to be cumulative. The Examiner cited each of Todorow,
Yuda and Blalock as teaching a surface processing apparatus having an
apertured transmission plate to control plasma conditions within the
apparatus. Ans. 5, 8-10. We will limit our discussion to Todorow as
representative of the primary references.
The dispositive issue for this appeal is: Did the Examiner err in
determining that the combination of Todorow and Kanarov would have led
one skilled in the art to a surface treating apparatus having an apertured
transmission plate having a ratio of the diameter of the apertures to the
thickness of the transmission plate greater than 3:1 as required by the subject
matter of independent claim 1? 2
After thorough review of the respective positions provided by
Appellants and the Examiner, we AFFIRM the prior art rejections for the
reasons presented by the Examiner and add the following for emphasis.
As noted above, the Examiner found that Todorow discloses a surface
processing apparatus having an apertured transmission plate to control
plasma conditions within the apparatus. Ans. 5. Todorow discloses that the
open area (aperture diameter) of the transmission plate controls the plasma
distribution. Todorow ¶¶ [0024]-[0029]. The Examiner found that Todorow
does not disclose the claimed ratio of the diameter of the apertures to the
thickness of the transmission plate greater than 3:1. Ans. 6. The Examiner

2 We focus our discussion on independent claim 1. Appellants have not
argued the dependent claims separately. Accordingly, claims not argued
separately will stand or fall together with independent claim 1.
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found that Kanarov discloses it was known to vary the diameter of the
apertures and the thickness of a transmission plate in a surface processing
apparatus to control the uniformity of the particles’ flow towards the
substrate. Id. The Examiner found that it would have been obvious to one
skilled in the art to optimize the ratio of the diameter of the apertures to the
thickness of the transmission plate in view of Kanarov’s disclosure. Id.
Appellants argue that neither Todorow nor Kanarov disclose the
claimed ratio of the diameter of the apertures to the thickness of the
transmission plate greater than 3:1. App. Br. 4. We are unpersuaded by this
argument and agree with the Examiner’s reasoning that it would have been
obvious to one skilled in the art to optimize the ratio of the diameter of the
apertures to the thickness of the transmission plate in view of Kanarov’s
disclosure. Ans. 6, 18-19. In order to establish obviousness for optimizing a
parameter, the prior art must recognize the parameter as a result-effective
variable. See In re Antonie, 559 F.2d 618, 620 (CCPA 1977). As correctly
noted by the Examiner, Todorow recognizes that the open area (aperture
diameter) of the transmission plate controls the plasma distribution. Ans. 5-
6; Todorow ¶¶ [0024]-[0029]. The Examiner further established that
Kanarov recognizes varying the diameter of the aperture and thickness of a
transmission plate to enhance the uniformity distribution of plasma from the
transmission plate. Ans. 6. Moreover, Appellants acknowledge in the
background of the invention that it is known to adjust the ratio of aperture to
thickness (“aperture” tube length) of a showerhead (transmission plate) in a
surface processing device to adjust the application of plasma. Spec. 2.
Appellants do not direct us to any evidence of unexpected results. See
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Antonie, 559 F.2d at 620 (a prima facie case of obviousness may be rebutted
where the results of optimizing a variable are unexpectedly good).
Thus, we concur with the Examiner that the determination of the
optimum ratio of aperture diameter to thickness of the transmission plate as
required by the subject matter of independent claim 1 is well within the
ambit of one of ordinary skill in the art in view of the collective teachings of
Todorow and Kanarov would have suggested that such a ratio is a result
effective variable in terms of ensuring uniform distribution of plasma in a
substrate processing apparatus. Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348,
1368 (Fed. Cir. 2007)( “[D]iscovery of an optimum value of a variable in a
known process is usually obvious.”); In re Boesch, 617 F.2d 272, 276
(CCPA 1980)(“[D]iscovery of an optimum value of a result effective
variable . . . is ordinarily within the skill of the art.”).
Appellants additionally argue that Kanarov’s aperture plate is not a
transmission plate for the transmission of plasma because it transports a
beam of ions from the plasma. App. Br. 5. Appellants further argue that
Kanarov’s device operates at pressures lower than Appellants’ invention. Id.
at 5-6. Thus, Appellants contend that one skilled in the art would not look at
Kanarov to modify a plasma device that operates at a higher pressure. Id. at
6.
We are unpersuaded by these arguments as well and agree with the
Examiner’s reasoning that the transmission plate in the surface processing
apparatus of Kanarov, like Todorow, allows passage of the material to
improve uniformity of its distribution over the surface of a substrate. Ans.
15. Moreover, while Appellants argue operational differences between the
device of Kanarov and Appellants’ device (App. Br. 5-6), we note that this
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argument does not take into account the fact that Todorow recognizes that
the design of the transmission plate impacts the plasma distribution. Ans. 5-
6; Todorow ¶¶ [0024]-[0029].
Accordingly, we sustain the Examiner’s rejections of claims 1, 5-7,
11-14, 16-20, 22, 24, 25 and 28 under 35 U.S.C. § 103(a) as obvious over
Todorow and Kanarov, of claims 1 and 15 under 35 U.S.C. § 103(a) as
obvious over Yuda and Kanarov, and of claims 1, 21 and 22 under 35 U.S.C.
§ 103(a) as obvious over Blalock and Kanarov
The Examiner rejected dependent claims 8-10, 23, 26 and 27 under
35 U.S.C. § 103(a) as unpatentable over Todorow, Kanarov and further in
view of additional secondary references to Uchiyama, Luo, and Koshimizu.
Ans. 11-13. These references were cited to meet respective limitations of
these dependent claims. Id. In addressing these rejections, Appellants relied
on the arguments presented when discussing independent claim 1. App. Br.
9-10. Appellants did not substantively address or further distinguish the
cited secondary references based on the additional limitations of the rejected
claims. Therefore, we also affirm these rejections for the reasons given
above and by the Examiner.

ORDER
The rejection of claims 1, 5-7, 11-14, 16-20, 22, 24, 25 and 28 under
35 U.S.C. § 103(a) as unpatentable over Todorow and Kanarov is affirmed.
The rejection of claims 1 and 15 under 35 U.S.C. § 103(a) as
unpatentable over Yuda and Kanarov is affirmed.
The rejection of claims 1, 21 and 22 under 35 U.S.C. § 103(a) as
unpatentable over Blalock and Kanarov is affirmed.
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Application 11/835,618

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The rejection of claims 8-10 under 35 U.S.C. § 103(a) as unpatentable
over Yuda, Kanarov and Uchiyama is affirmed.
The rejection of claim 23 under 35 U.S.C. § 103(a) as unpatentable
over Yuda, Kanarov and Luo is affirmed.
The rejection of claims 26 and 27 under 35 U.S.C. § 103(a) as
unpatentable over Yuda, Kanarov and Koshimizu 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
bar