Ex Parte Waldhauer et al

Board of Patent Appeals and Interferences

May 22, 2009

10261391 (B.P.A.I. May. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ANN P. WALDHAUER, JUAN M. CHACIN,
and BRIAN H. BURROWS
____________

Appeal 2008-002323
Application 10/261,391
Technology Center 1700
____________

Decided: May 22, 2009
____________

Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants seek review under 35 U.S.C. § 134 from the Examiner’s
rejections of claims 6-14, 16-18, 20-22, and 24-28 in the final Office Action
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dated May 17, 2007. This Board has jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
The invention of the present application is directed to an apparatus for
supporting a semiconductor wafer during high-temperature processing of
semiconductor materials. Claims 8 and 18 are illustrative and reproduced
below:
8. An apparatus comprising:
a shelf having dimensions suitable for placement
within a thermal processing chamber and to
support a substrate, the shelf comprising a body an
outer boundary of which defines a surface on to
which a coating may be applied, wherein, without
any coating on the body, each portion of the body
comprises a material that renders the body opaque
to radiation in a frequency range used for a
temperature measurement of a substrate in a
thermal processing chamber.
18. An apparatus comprising:
a shelf having dimensions suitable for placement
within a substrate processing chamber and to
support the substrate, the shelf comprising an
annular shape defined by the radius and interrupted
by a flatted portion defined by a right line between
two radii.
Claims 6-14, 16-18, 20-22, and 24-28 are pending in the present
application and stand rejected.
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The Examiner relies on the following prior art references as evidence
of unpatentability:
Goela 5,604,151 Feb. 18, 1997
Peuse 5,660,472 Aug. 26, 1997
Tietz (Tietz ‘889) 5,848,889 Dec. 15, 1998
Tietz (Tietz ‘412) 5,884,412 Mar. 23, 1999
Deaton (Deaton ‘555) 5,960,555 Oct. 5, 1999
Smith 6,022,812 Feb. 8, 2000
Bierman 6,035,100 Mar. 7, 2000
Deaton (Deaton ‘403) 6,048,403 Apr. 11, 2000
Jennings 6,200,388 Mar. 13, 2001
Ballance 6,395,363 May 28, 2002

The pending claims stand rejected as follows:
1. Claims 8-14, 16-18, 20-22, and 24-28 stand rejected under the
judicially created doctrine of obviousness-type double patenting over the
listed claims of the following commonly owned patents:
Claims 1-18 of Ballance;
Claims 1-18 of Jennings;
Claims 1-8 of Deaton ‘403;
Claims 1-11 of Bierman;
Claims 6-17 of Deaton ‘555;
Claims 1-11 of Tietz ‘412;
Claims 1-23 of Tietz ‘889; and
Claims 13-28 of Peuse.1

1 We note that all of these commonly owned patents are also available as
prior art under 35 U.S.C. § 102(a) and/or (b).
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2. Claims 8, 10-14, 16-18, 20-22, and 24-26 stand rejected
pursuant to 35 U.S.C. § 103(a) as obvious over Ballance.
3. Claims 6, 7, 27, and 28 stand rejected pursuant to 35 U.S.C. §
103(a) as obvious over Ballance in view of Smith.
4. Claim 9 stands rejected pursuant to 35 U.S.C. § 103(a) as
obvious over Ballance in view of Goela.

CLAIM CONSTRUCTION
Issue related to claim construction
In traversing both the obviousness-type double patenting and the §103
rejections, Appellants contend the invention of claim 8 is patentably distinct
by the limitation that each portion of the body comprises a material “that
renders the body opaque to radiation in a frequency range used for a
temperature measurement of a substrate in a thermal processing chamber.”
(App. Br. 10). Appellants dispute the Examiner’s alleged determination that
this feature represented a statement of intended use; rather, they contend it
defines a property of the claimed body material.
The Examiner contends Appellants misconstrue the rejection; the
statement of intended use allegation went only to the phrase, “in a frequency
range used for a temperature measurement.” (Ans. 19). The Examiner
agrees that Appellants’ more expansive clause went to a property of the
body material, but that, when construed broadly, either claimed an infinite
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number of materials or a single material with an infinite range of radiation
(Ans. 20).
Appellants replied that the Examiner’s position is incorrect, in view of
the full context of the relevant claim limitation, which is “opaque to
radiation in a frequency range used for a temperature measurement of a
substrate in a thermal processing chamber.” (Reply Br. 2) [emphasis
added].
In this regard, a preliminary issue raised is: whether the claim term
“opaque to radiation in a frequency range used for temperature measurement
in a thermal processing chamber” may properly be construed to include a
material that is opaque to certain radiation frequencies, but transmits other
radiation frequencies. We decide this issue in the affirmative.
Findings of Fact Related to Claim Construction
1. The Specification states, “[t]he apparatus may include a body of a
material that renders the body opaque to radiation in a frequency range used
for a temperature measurement of a substrate in a thermal processing
chamber” (Spec. 5, ¶ [0018]).
2. The Specification states, “[s]uitable materials for edge ring 134 or 234
that render the body of edge ring 136 opaque to radiation in a frequency
range used for a temperature measurement of a substrate in a thermal
processing chamber include low resistivity silicon carbides, such as certain
silicon carbide alloys, sintered silicon carbide, and doped silicon carbide
alloys” (Spec. 11, ¶ [0041]).
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3. The Specification states, “the body of the edge ring … may be made
of a material that renders the body opaque to radiation in a frequency range
used for a temperature measurement of a substrate (e.g., wafer) in a thermal
processing chamber … Suitable materials noted above for an opaque edge
ring body include, but are not limited to, silicon carbide alloys” (Spec. 13, ¶
[0047]).
4. The Specification states, “[e]dge ring 334 may alternatively be made
of a material, such as silicon carbide that is transparent to radiation in the
frequency range used for temperature measurements of the substrate” (Spec.
14, ¶ [0048]).
5. The Specification states that the opaque apparatus may be “subjected
to thermal processing, particularly but not limited to thermal processing of
up to or greater than 1200 ºC” (Spec. 5, ¶ [0017]).
6. The Examiner finds that, “[i]ndeed from fundamental
thermodynamics and spectroscopy, all materials have some degree of
transmission and some degree of absorbance. Applicant’s opacity is thus
intermediate between transparent or 100% transmission and opaque or 100%
absorbance both of which are impossible for ‘radiation in a frequency range
used for a temperature measurement of a substrate.’ A black body in
physics is a material that absorbs all radiation that it encounters. A black
body is also a thermodynamic model that does not exist in real life
corresponding to 100% absorbance. As a result all materials have some
degree of radiation transmission and radiation absorbance including
‘radiation in a frequency range used for a temperature measurement of a
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substrate.’” (Ans. 20-21) [emphasis in original]. Appellants have not
disputed this finding in their Reply Brief.
7. Merriam-Webster’s dictionary defines “opaque” as “exhibiting
opacity: blocking the passage of radiant energy and especially light.”
Merriam-Webster’s Collegiate Dictionary, 813 (10th Ed. 1996).
Principles of Law Related to Claim Construction
To properly compare a prior art reference with the claims at issue, the
claim must first be correctly construed to define the scope and meaning of
each contested limitation. Gechter v. Davidson, 116 F.3d 1454, 1457 (Fed.
Cir. 1997).
During examination, claims are given their broadest reasonable
interpretation consistent with the Specification, and claim language should
be read in light of the Specification as it would be interpreted by one of
ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). This interpretation “serves the public interest by
reducing the possibility that claims, finally allowed, will be given broader
scope than justified”, In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)
[quoting In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984), while “it is
not unfair to applicants, because “before a patent is granted the claims are
readily amended as part of the examination process.”] Id. [quoting
Burlington Indus., Inc. v. Quigg, 822 F.2d 1581, 1583 (Fed. Cir. 1987)].
“[T]he words of a claim ‘are generally given their ordinary and
customary meaning.”’ Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.
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Cir. 2005) (en banc) (internal citations omitted). The “ordinary and
customary meaning of a claim term is the meaning that the term would have
to a person of ordinary skill in the art in question at the time of the invention,
i.e., as of the effective filing date of the patent application.” Id. at 1313.

Analysis of Claim Construction
One of the principle issues raised by Appellants in this appeal, in
regards to the rejections on grounds of both judicially created obviousness-
type double patenting (App. Br. 11) and of § 103 obviousness (App. Br. 12-
13), is whether the prior art claims and/or teaches or suggests a body
material that is opaque, or, more specifically, opaque to radiation in a
frequency range used for a temperature measurement of a substrate in a
thermal processing chamber.
In construing a claim, we start with the customary and ordinary
meaning of words. Phillips, 415 F.3d at 1312. The operative word in the
claim phrase at issue is “opaque.” The customary and ordinary meaning of
that word, according to the Merriam-Webster’s Dictionary, is “blocking the
passage of radiant energy and especially light” (FF 7). This would imply
that an opaque material allows passage of no radiant energy, or, as limited in
the claim, allows passage of no radiant energy of a frequency used for a
temperature measurement of a substrate in a thermal processing chamber.
Notwithstanding the ordinary and customary usage, the claim term
must be read in light of the Specification. Am. Acad. of Sci. Tech. Ctr., 367
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F.3d at 1364. In the Specification, we find no explicit definition of either the
term, opaque, or the complete phrase under contention, other than by
example. Likewise, we find no guidance from Appellants’ Specification
concerning the temperature range over which the material must be opaque,
other than that “used for a temperature measurement of a substrate in a
thermal processing chamber.”
The only attempt at defining the claim term in the Specification is by
example. The Specification notes that certain forms of silicon carbide,
namely low-resistivity silicon carbides, are opaque to radiation at the
relevant frequencies. These include sintered silicon carbide and silicon
carbide alloys (FF 2, 3). However, the Specification also states that edge
ring 334 may alternatively be made of a material, such as silicon carbide that
is transparent to radiation …” (FF 4). We find the Specification teaches that
some types of silicon carbide materials are opaque, while others are not.
However, other than the few examples, the Specification provides no
guidance on how to construe the claim term, beyond the ordinary and
customary meaning.
As the Examiner points out, those skilled in the art recognize that all
materials have varying degrees of transmissivity and, conversely,
opaqueness. No material is 100% transmissive, or 100% absorptive (FF 6).
We also note that claim 8 is not limited to any frequency range or for any
temperature at which the temperature of the substrate may be measured. The
Specification discusses temperature measurements “of up to or greater than
1200 ºC” (FF 5), but sets no limits for potential temperature ranges. In light
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of these facts, our duty to construe claims as broadly as reasonably possible,
and the ordinary and customary meaning of the term as it would have been
understood by those skilled in the art, we construe the claim term to read on
any material except those which are 100% transmissive over all frequencies
and over all temperatures for which a temperature measurement may be
undertaken.
DOUBLE PATENTING REJECTIONS
Claim Groupings
Claims 8-14, 16-18, 20-22, and 24-28 stand rejected as unpatentable
under the judicially-created doctrine of obviousness-type double patenting
over the 8 references listed above, all of which are commonly owned by
Applied Materials Inc., Santa Clara, CA. Appellants do not contest that the
patents and the current application were commonly owned at the time the
invention was made.
Appellants argue separately for the patentability of independent
claims 8 and 18 (App. Br. 10-12). Appellants argue the patentability of
claims 8 and 18 with respect to the prior references collectively (App. Br.
11-12). Appellants, however, argue for the patentability of claims 9-14, 16,
and 17 solely on their dependence on and the patentability of claim 8 (App.
Br. 11). Therefore, claims 8-14, 16, and 17 shall be treated as a group, to
stand or fall together, with claim 8 as representative of the group. 37 C.F.R.
§ 41.37(c)(1)(vii). Likewise, claims 20-22 and 24-28 are argued solely on
the basis of their dependency on and patentability of claim 18 (App. Br. 12).
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Therefore, claims 18, 20-22, and 24-28 will be treated as a group, to stand or
fall together, with claim 18 as representative of the group.
Issues related to Double Patenting
With regard to claim 8, Appellants contend the cited prior art does not
teach an edge ring body that is opaque to radiation, only an opaque coating
applied to a body (App. Br. 11).
The Examiner found the prior art taught substantially the same
apparatus, and therefore further found the claimed property of opaqueness
was inherent in the prior art disclosure (Ans. 18).
Appellants acknowledge that disclosure of a structure substantially
identical to a claimed structure creates a presumption that a property or
function is inherent, and the burden shifts to an applicant to prove otherwise
(App. Br. 11).
Therefore, the first issue we address is: Have Appellants shown the
Examiner reversibly erred in determining that the claimed inventions of the
prior art would have inherently or obviously included opaque materials
within the scope of this term as construed above? We decide this issue in
the negative.
Regarding claim 18, Appellants contend the prior art does not teach a
shelf comprising an annular shape defined by a radius and interrupted by a
flatted portion defined by a right line between two radii (App. Br. 11-12).
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The Examiner found the claimed shape was the result of routine
optimization of the prior art disclosure, and concluded such optimization
would have been obvious to one skilled in the art.
The second issue we address is: Have Appellants shown the
Examiner reversibly erred in determining the claimed shape of the shelf
would have been obvious by routine optimization, in light of the claimed
inventions of the applied prior art? We decide this issue in the negative.
Findings of Fact Related to the Double Patenting Rejections
The following additional facts are found by a preponderance of the
evidence on the record.
8. The Specification discloses that one embodiment shows an edge ring
with shelf having a flatted portion. This shelf will support a flatted or D-
shaped substrate, the edge ring having a shape corresponding to the shape of
the substrate. In this manner, the radial overlap between the shelf and the
substrate may be reduced to the order of 3mm or less (Spec. 12, ¶ 0043).
Principles of Law Relating to Double Patenting Rejections
The doctrine of obviousness-type double patenting is a judicially
created doctrine grounded on public policy. Its purpose is to prevent the
extension of the term of a patent, even where an express statutory basis for
the rejection is missing, by prohibiting the issuance of the claims in a second
patent not patentably distinct from the claims in a commonly owned first
patent. In re Longi, 759 F.3d 887, 893 (Fed. Cir. 1985). The inquiry is
whether the claimed invention in the application for a second patent would
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have been obvious from the subject matter of the claims in the first patent, in
light of the prior art. Id.
The obviousness-type double patenting analysis involves two steps.
First, as a matter of law, the claims of the earlier patent and the later
application are construed and the differences between the two are
determined. Then, the tribunal determines whether the differences in subject
matter between the two claims render the claims patentably distinct. A later
claim that is not patentably distinct from a claim in an earlier, commonly-
owned patent is properly rejected for obviousness-type double patenting. A
later patent claim is not patentably distinct from an earlier patent claim if the
later claim is obvious over, or anticipated by, the earlier claim. Eli Lilly and
Co. v. Barr Labs., Inc., 251 F.3d 955, 968 (Fed. Cir. 2001).
Where the claims and prior art products are identical or substantially
identical, the Patent Office may require an applicant to prove that the prior
art products do not necessarily or inherently possess the characteristics of the
claimed product. In re Best, 562 F.2d 1252, 1255 (CCPA 1977).

Analysis of the Double Patenting Rejections
Claim 8
Appellants contend that claim 8 is patentably distinct from the cited
prior art because the prior art does not disclose a shelf made of a material
which, if uncoated, is “opaque to radiation in a frequency range used for a
temperature measurement of a substrate used in a thermal processing
chamber.”
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Initially, the Examiner found, in the final Office Action, that the
difference between claims 8 and 18 and the claims of the cited commonly
owned patents in the rejection was the claimed dimensions of the shelf. The
Examiner concluded this difference would have been obvious to one skilled
in the art (Ans. 3-8).
Appellants, in response, point out another distinction between their
claimed invention and the claims of the prior commonly-owned patents – the
claim is directed to a body opaque to radiation in a frequency range used for
a temperature measurement of a substrate in a thermal processing chamber
(App. Br. 10-11).
With regards to the claimed body material, Appellants acknowledge
that claimed properties or functions are presumed inherent if the structure
claimed in the references is substantially identical to that claimed by
Appellants, and acknowledge that the presumption can be rebutted by
evidence showing that the prior art products do not necessarily possess the
characteristics. (App. Br. 11). In their rebuttal, Appellants point out the
lack of explicit disclosure of an opaque body material in the cited patents,
only opaque coatings on the body material. Id.
We do not find Appellants’ argument persuasive. An Examiner may
maintain a rejection that claims would have been obvious if a reasonable
basis is provided to believe the claimed property or characteristic is inherent
in the reference. As they acknowledge, Appellants then have the burden of
showing the invention disclosed or claimed in the reference does not
inherently possess the property or characteristic. Best at 1255. Merely
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pointing out the lack of explicit teaching of the claim limitation does not
provide evidence overcoming the burden.
Based on our construction of the claim term, “opaque to radiation in a
frequency range used for temperature measurement of a substrate in a
thermal processing chamber,” we agree with the Examiner that almost any
material may meet the limitation. Hence, a reasonable basis exists that the
property is inherent in the claimed product of the commonly owned patents.
Best, 562 F.2d at 1252. Appellants have not presented any evidence that any
of the claimed inventions of the commonly owned patents cited in the
obviousness-type double patenting rejections necessarily and inherently do
not have an opaque body material, as we have construed that term.
Therefore, we decide the first issue in the negative.
Accordingly, the rejection of claim 8, and of claims 9-14, 16, and 17
by representation, on grounds of judicially-created obviousness-type double
patenting is sustained.
Claim 18
Appellants contend claim 18 is patentably distinct from the claimed
inventions of the cited commonly-owned patents because of the lack of a
shelf comprising an annular shape defined by the radius and interrupted by
a flatted portion defined by a right line between two radii (App. Br. 11).
Appellants point out that the claims of the cited commonly owned patents do
not comprise the specified shape (Id.). They state the Patent Office has not
found any reference that describes or suggests a shelf with a flatted portion
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defined by a right line between two radii. The cited references only have
uninterrupted annular shapes (Id.). Appellants further point out a shelf
“having a flatted portion may have a smaller length in corresponding radial
overlap of a substrate on the shelf may be reduced.” (Reply Br. 3).
We find the claimed shape, including a flatted section, would have
been derived from routine optimization of the patentees’ claimed inventions.
Claim 18 is limited to a shelf with a flatted portion. The commonly owned
patents claim a shelf without any specified shape. The present Specification
notes that the edge ring with the flatted shelf portion, as embodied in claim
18, may support a flatted or D-shaped substrate, with no more than a 3 mm
overlap between them (FF 8). Essentially, the shelf shape is congruent with
and taken from the shape of a substrate, scaled slightly smaller to provide
uniform and minimal overlap. Appellants have merely shaped the shelf of
the edge ring to correspond or be congruent with the shape of an existing
substrate. The claimed shelf shape would have been merely a predictable
variation on known shelf designs to make the shelf correspond to the size
and shape of an existing substrate. For these reasons, we decide the second
issue in the negative. The rejection of claim 18, and of claims 20-22 and 24-
28 by representation, under the judicially created doctrine of obviousness-
type double patenting, is sustained.
THE § 103 REJECTIONS
Issues Related to Obviousness
Ballance
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The Examiner rejected claims 8, 10-14, 16-18, 20-22, and 24-26 as
obvious over Ballance (Ans. 8-17). Appellants argue for the patentability of
independent claims 8 and 18, and dependent claims 14 and 17, and for the
remaining dependent claims based on the allowability of the independent
claims on which they respectively depend. Therefore, we address claims 8,
10-13, and 16 as a group, to stand or fall together, with claim 8 as
representative. We separately address Appellants’ arguments regarding
claims 14 and 17. We address claims 18, 20-22, and 24-26 as a group, to
stand or fall together, with claim 18 as representative.
In rejecting claim 8 as obvious over Ballance, the, the Examiner
concluded it would have been obvious to make the polysilicon layer taught
in Ballance integral with the body (Ans. 17). The motivation being
Ballance’s teaching to avoid the uneven deposition of a layer. (Id.). In
response to the rejection of claim 8, Appellants contend Ballance recognizes
the need for opacity, where the body comprises a transparent silicon carbide,
but solves it only through the use of layers or coatings on a transparent core
(App. Br. 13). Any motivation to make the body opaque, contend
Appellants, was derived in hindsight from Appellants’ disclosure (Id.).
The third issue we address is: Have Appellants shown the Examiner
reversibly erred in determining an edge ring body made of an opaque
material would have been obvious over the teachings of Ballance? We
decide this issue in the negative.
The Examiner determines that the support portion having a diameter
less than a substrate feature of claim 14 and the overlap between the “flatted
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portion” and the substrate feature of claim 17 are intended uses of the
support that depend upon the size and shape of the substrate (Ans. 10-11,
24).
Appellants contend that the disputed features of claims 14 and 17 are
structural and differ from an annular shelf that would have a reduced interior
diameter to support the “flatted” edge of a substrate along with other edges
(App. Br. 13-14).
The fourth issue we address is: Have Appellants shown the Examiner
reversibly erred in determining that the features of claims 14 and 17 depend
upon the size and shape of the substrate used? We decide this issue in the
negative.
Appellants also contend claim 18, and its dependent claims are
patentable over Ballance because Ballance does not teach a flatted portion
on the annular shelf (App. Br. 14). The Examiner contends that changing
the dimensions of an apparatus are within the ordinary skill level of the art
(Ans. 25).
The fifth issue we address is: Have Appellants show the Examiner
reversibly erred in concluding the configuration of the claimed flatted
portion of the shelf would have been obvious to one of ordinary skill in the
art? We decide this issue in the negative.
Ballance in view of Smith
Claims 6, 7, 27, and 28 were rejected as obvious over Ballance in
view of Smith. Regarding claims 6 and 7, the Examiner found Smith taught
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a purifier (dessicant) and an inert gas source upstream of a deposition
chamber (Ans. 18).
Regarding claim 27, the Examiner determined merely duplicating the
dessicant would have been obvious (Ans. 18). Regarding claim 28, the
Examiner determined the limitation of hydrogen as the source gas was
merely a limitation on the use of the apparatus, and not a patentable
limitation on an apparatus (Ans. 18).
Appellants contend neither Balance nor Smith disclose a purifier
coupled with a source gas at a location adjacent to the inlet of a chamber,
nor the motivation for so doing (App. Br. 15). With respect to claim 27,
Appellants contend there is no teaching or suggestion of multiple dessicants
(App. Br. 15-16). Finally, with respect to claim 28, Appellants dispute the
Examiner’s determination that the limitation on hydrogen source gas is a
limitation on use, rather, it is a valid limitation on the apparatus. (App. Br.
16).
The sixth through eighth issues we address are:
(6) Have the Appellants shown the Examiner reversibly erred in
determining the claimed placement of the purifier adjacent to the chamber
inlet was obvious? We decide this issue in the negative.
(7) Have Appellants shown the Examiner reversibly erred in
determining multiple purifiers were obvious? We decide this issue in the
negative.
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(8) Have Appellants shown the Examiner reversibly erred in
determining the limitation on a hydrogen source gas fails structurally to limit
the claimed apparatus? We decide this issue in the affirmative.

Ballance in view of Goela
Claim 9 was rejected as obvious over Ballance in view of Goela. The
Examiner determined it would have been obvious to substitute opaque
silicon carbide, as taught in Goela, for the edge ring body material (Ans. 19).
The motivation would be to optimize IR transmission over Ballance’s
material, as taught in Goela (Id.).
Appellants contend that the combined references do not teach, suggest
or provide motivation for a shelf comprising a material which, uncoated, is
opaque to radiation in a frequency used for a temperature measurement of a
substrate in a thermal processing chamber (App. Br. 16).
The ninth issue we address is: Have Appellants shown the Examiner
reversibly erred in determining a shelf comprising opaque silicon carbide
would have been obvious over Ballance in view of Goela? We decide this
issue in the negative.
Findings of Fact Related to the § 103 Rejections
9. Ballance discloses an apparatus with an edge ring having an annular
shelf 135 upon which a substrate rests (col. 4, l. 27).
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10. Ballance discloses that the edge ring may be made of silicon carbide,
which is transparent to radiation in the frequency used for temperature
measurements of a substrate (col. 5, ll. 11-13).
11. Ballance discloses that a polysilicon layer, up to 100 μm, may be
applied to the top and bottom surfaces of the edge ring to provide opacity
(col. 5, ll. 18-23).
12. The Examiner found Smith taught a purifier (dessicant) and an
inert gas source (Ans. 18). Appellants do not dispute this finding, and we
accept it as fact.
13. Goela discloses a variant of silicon carbide, namely
polycrystalline silicon carbide, which is opaque (col. 1, ll 20-21). Goela
discloses manipulating the optical transmission properties of polycrystalline
silicon carbide to render it useful for lenses, domes, light detection and
ranging mirrors, for example (col. 1, ll. 21-25).
Principles of Law Related to the § 103 Rejections
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007).
The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
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(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
“When a work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in the same field
or a different one. If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same reason, if a
technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill.” KSR, 550 U.S. at 417. A person of ordinary skill is
a person of ordinary creativity, not an automaton. Id. at 421.
It is obvious to duplicate one or more parts of a machine or
manufacture unless the duplication causes a new and unexpected result. In
re Harza, 274 F.2d 669, 671 (CCPA 1960).
The relocation of an element from that disclosed in the prior art is not
inventive if the operation of the device is not modified. In re Japikse, 181
F.2d 1019, 1023 (CCPA 1950).

Analysis of the § 103 Rejections
Ballance
Appellants essentially raise the same issues as in the obviousness-type
Double Patenting rejections, supra. In this § 103 rejection over Ballance,
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Appellants focus on the fact that Ballance discloses an edge ring with an
annular shelf to support a substrate (App. Br. 12, see FF 9), made of silicon
carbide, which Ballance refers to as transparent (App. Br. 12, see FF 10).
The edge ring may be coated with an opaque material, such as polysilicon
(App. Br. 12, see FF 11). Appellants argue that Ballance solves the problem
of providing opaqueness by coating an otherwise transparent body material,
but does not teach or suggest using an opaque body material (App. Br. 12-
13)
Despite the disclosure in Ballance, we are not persuaded by
Appellants’ argument. Appellants rely on Ballance’s disclosure of silicon
carbide as transparent (App. Br. 12). However, Ballance’s description of the
silicon carbide does not necessarily indicate that the silicon carbide is not
“opaque” at all frequencies used to measure temperature, as we have
construed the claim term. As we have broadly construed the term “opaque”
above, most all materials, including many silicon carbides, would to some
extent be opaque at different frequencies. Therefore, a reasonable basis
exists to believe the edge ring body in Ballance is opaque as we have
construed this word, and Appellants have not shown or provided evidence
that it necessarily is not, other than relying on the description by Ballance.
Therefore, we decide the third issue in the negative, and the rejection of
claim 8, and claims 10-13, and 16 by representation, under § 103 over
Ballance, is sustained.
With regard to claims 14, 17, and 18, Appellants generally contend
that the claimed shelf configuration is not taught and would not have been
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suggested by Ballance. We do not agree. Rather, Ballance clearly teaches
that the substrate and support overlap (see e.g., Figure 5) such that it would
have been within the skill of a person in the art to tailor the amount of
overlap and shape of the support for a particular substrate. KSR, 550 U.S. at
421 (“A person of ordinary skill is a person of ordinary creativity, not an
automaton”). Accordingly, the Examiner is correct that the claim 14 and
claim 17 shelf features depend on the size and shape of the substrate such
that one skilled in the art would have optimized the amount of overlap
between the substrate and the shelf and the shape of the support based on
Ballance’s teaching to accommodate the particularly shaped substrate. Such
accommodation of the substrate would have included tailoring the shelf to
include the “flatted portion” recited in claim 18. We decide the fourth and
fifth issues in favor of the Examiner’s position, and we sustain the rejection
of claims 14, 17, 18, 20-22, and 24-26 under § 103 over Ballance.
Ballance in view of Smith
The issue regarding claims 6 and 7 under this rejection is whether the
prior art teaches a purifier located adjacent to the inlet of a chamber. Smith
teaches a dessicant (purifier) and a gas source (FF 12). Appellants point out
that locating the purifier adjacent to the chamber reduces the likelihood of
contaminants infiltrating into the source gas in longer line lengths (App. Br.
15).
We do not find Appellants’ argument persuasive. Although the prior
art does not teach any specific location or distance between the chamber and
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the purifier, minimizing the distance would have been obvious to reduce
costs and size of the apparatus. Also, reducing the likelihood of
contamination would have been within the common sense of one of ordinary
skill in the art. Moreover, as shown in Smith’s Figure 1, the desiccant (6) is
“adjacent” an inlet to the deposition chamber 16. Specifically, the desiccant
6 is part of the inlet piping that is adjacent and leads to the inlet of the
chamber 16.
Further, changing the location of components of a device is not
patentable, unless a change in the function of the device results. Japikse,
181 F.2d at 1023. Appellants have not alleged any functional change
resulting from relocating the device. For these reasons, we answer the sixth
issue in the negative, and the § 103 rejection of claims 6 and 7 over Ballance
in view of Smith is sustained.
The issue regarding claim 27 under this rejection is whether the
claimed second purifier in series would have been obvious. Duplicating
parts is patentable only if it results in a new and unexpected result. Harza,
274 F.2d at 671. Appellants do not allege, much less provide evidence of,
any new or unexpected result, but only argue the lack of any teaching of a
second purifier (App. Br. 15). Therefore, we answer the seventh issue in the
negative, and sustain the rejection of claim 27.
The issue regarding claim 28 under this rejection concerns the
limitation of the source gas being hydrogen and whether this is a limitation
on the use of an apparatus. We determine that this limitation is structural,
and not operational. Claim 6, upon which claim 28 ultimately depends,
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includes an apparatus comprising: (a) a thermal processing chamber, (b) a
source gas coupled to the chamber, and (c) a purifier coupled to the source
gas. The source gas is a physical element of the apparatus, and does not
address the use to which the apparatus is put for rapid thermal processing.
The claimed apparatus cannot function without some form of source gas
provided. Claim 28 merely specifies a particular type of gas for the source
gas limitation.
The Examiner has not explained why it would have been obvious to
use hydrogen as the source gas. The Examiner has not established a prima
facie case of obviousness with regard to the subject matter of claim 28.
Accordingly, we answer the eighth issue affirmatively, and the
rejection of claim 28 over Ballance in view of Smith is not sustained.
Ballance in view of Goela
The issue concerning claim 9 which we address is whether the
substitution of opaque silicon carbide, as taught in Goela, for the transparent
silicon carbide taught in Ballance, would have been obvious to one of
ordinary skill. We determine that it would have been obvious to make such
a substitution because Ballance uses a polysilicon layer to make the support
opaque, such that using Goela’s polycrystalline silicon carbide would have
provided the selective transmission (i.e., opacity) sought, while avoiding
Balance’s problems noted with coating the shelf. Goela discloses that the
polycrystalline material may be made in bulk form as distinguished from
silicon carbide thin films (col. 2, ll. 58-62). When a technique has been used
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to improve one device, a person of ordinary skill would recognize that it
would improve similar devices in the same way. KSR, 550 U.S. at 417. We
answer the ninth issue negatively. Goela discloses a variant of silicon
carbide which is opaque to radiation (FF 13).
Appellants argue for the patentability of claim 9 based on its
dependence on and allowability of claim 8 (App. Br. 16). As we have
sustained the rejection of claim 8, supra, we likewise find Appellants’
argument unpersuasive. The rejection of claim 9 as obvious over Ballance
in view of Goela is sustained.
CONCLUSIONS
1. The Appellants have not met their burden to establish that the
prior art disclosure inherently and necessarily did not have opaque materials,
as we have construed that term. The rejections of claims 8-14, 16, and 17 on
grounds of the judicially created doctrine of obviousness-type double
patenting are sustained.
2. Appellants have not shown the Examiner reversibly erred in
finding the shelf shape was the product of routine optimization. The
rejections of claims 18, 20-22, and 24-28 on grounds of the judicially
created doctrine of obviousness-type double patenting are sustained.
3. Appellants have not shown the Examiner reversibly erred in
concluding an edge ring body made of an opaque material was obvious over
the teachings of Ballance. The rejection of claims 8, 10-13, and 16 as
obvious over Ballance is sustained.
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4. Appellants have not shown that the Examiner reversibly erred
in determining that the features of claims 14 and 17 are relative to the size
and shape of the substrate used. The rejection of claims 14 and 17 over
Ballance is sustained.
5. Appellants have not shown the Examiner reversibly erred in
concluding the configuration of the claimed flatted portion of the shelf
would have been obvious. The rejection of claims 18, 20-22, and 24-26 as
obvious over Ballance is sustained.
6. Appellants have not shown the Examiner reversibly erred in
determining the claimed placement of the purifier adjacent to the inlet of a
chamber would have been obvious. The rejection of claims 6 and 7 as
obvious over Ballance in view of Smith is sustained.
7. Appellants have not shown the Examiner reversibly erred in
determining the claimed second purifier in series with the first purifier
would have been obvious. The rejection of claim 27 as obvious over
Ballance in view of Smith is sustained.
8. Appellants have shown the Examiner reversibly erred in
determining that the claimed hydrogen as a source gas was merely a
limitation on the use of an apparatus. The rejection of claim 28 as obvious
over Ballance in view of Smith is not sustained.
9. Appellants have not shown the Examiner reversibly erred in
determining that a shelf comprising opaque silicon carbide, as taught in
Goela, would have been obviously used in Ballance’s apparatus. The
rejection of claim 9 as obvious over Ballance in view of Goela is sustained.
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The decision of the Examiner to reject all claims on appeal is
affirmed.

TIME PERIOD FOR RESPONSE
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)(v)(2008).

AFFIRMED

PL initial:
sld

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