Ex Parte White et alDownload PDFPatent Trial and Appeal BoardDec 30, 201312406407 (P.T.A.B. Dec. 30, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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. 12/406,407 03/18/2009 John M. White APPM/009394.D1/DISPLAY/AK 5369 44257 7590 12/31/2013 PATTERSON & SHERIDAN, LLP - - APPM/TX 3040 POST OAK BOULEVARD, SUITE 1500 HOUSTON, TX 77056 EXAMINER CHEN, KEATH T ART UNIT PAPER NUMBER 1716 MAIL DATE DELIVERY MODE 12/31/2013 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 TRIAL AND APPEAL BOARD ____________ Ex parte JOHN M. WHITE, ROBIN L. TINER, BEOM SOO PARK, and WENDELL T. BLONIGAN ____________ Appeal 2012-011914 Application 12/406,407 Technology Center 1700 ____________ Before CATHERINE Q. TIMM, MICHAEL P. COLAIANNI, and GEORGE C. BEST, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-011914 Application 12/406,407 2 On October 18, 2011, the Examiner finally rejected claims 1-3, 5-8, 10-12, 14, 15, and 21-25 of Application 12/406,407 under 35 U.S.C. § 103(a) as obvious and on the ground of nonstatutory double patenting. Appellants1 seek reversal of these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). Oral argument in this appeal was held on December 12, 2013. For the reasons set forth below, we AFFIRM. BACKGROUND The ’407 application describes an improved structure for RF grounding a cathode in a plasma-enhanced chemical vapor deposition (“PECVD”) chamber. Claim 1 is representative of the ’407 application’s claims and is reproduced below: 1. A plasma enhanced chemical vapor deposition apparatus, comprising: a chamber body having a substrate transport port through a chamber wall; an RF grounding assembly coupled to a portion of the chamber wall disposed above the substrate transport port; and a substrate support disposed in the chamber body and movable between a first position spaced from the RF grounding assembly and a second position in contact with the RF grounding assembly, wherein an RF return path is defined from the substrate support through the RF grounding assembly to the portion of the 1 Applied Materials, Inc., is identified as the real party in interest. (App. Br. 3.) Appeal 2012-011914 Application 12/406,407 3 chamber wall disposed above the substrate transfer port when the substrate support is in the second position. (App. Br. 27 (Claims App’x) (some paragraphing added).) REJECTIONS2 On appeal, the Examiner maintains, and Appellants appeal, the following rejections: 1. Claims 1-3, 5, and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Al-Shaikh3 and the Admitted State of the Prior Art (“ASPA”).4 (Ans. 5.) 2. Claims 1-3, 5, 10, 14, 21-22, and 24 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Al- Shaikh and Reynolds.5 (Ans. 6.) 3. Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Al-Shaikh, Reynolds, and ASPA. (Ans. 7.) 4. Claims 1-3, 5, 8, 10, 14, 21-22, and 24 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of ASPA and Al-Shaikh. (Ans. 7.) 2 Appellants do not contest the double patenting rejection. (App. Br. 25.) Therefore, we do not review this rejection. 3 U.S. Patent No. 6,221,221 B1, issued April 24, 2001. 4 Figures 1 and 2 and the associated text in the ’407 application’s Specification, including ¶¶ 0033-0044. 5 U.S. Patent No. 6,183,564 B1, issued Feb. 6, 2001. Appeal 2012-011914 Application 12/406,407 4 5. Claim 23 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Al-Shaikh, Reynolds, and Chew.6 (Ans. 9.) 6. Claim 23 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of ASPA, Al-Shaikh, and Chew. (Ans. 10.) 7. Claim 25 is rejected under 35 U.S.C. § 103(a) as unpatentable over Al-Shaikh, Reynolds, and Brcka.7 (Ans. 10.) 8. Claim 25 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of ASPA, Al-Shaikh, and Brcka. (Ans. 11.) DISCUSSION Appellants’ arguments for reversal of the obviousness rejections turn on a single issue: Was the Examiner correct in determining that the teachings of Al-Shaikh could be combined with the teachings of the other references used in the series of asserted rejections to support a conclusion of obviousness with respect to the plasma enhanced chemical vapor deposition (PECVD) apparatus of the claims? Because we answer this question in the affirmative, we affirm the rejection of claims 1-3, 5-8, 10-12, 14, 15, and 21- 25 as obvious. In challenging the prior art rejections, Appellants argue that the claimed invention is limited to a PECVD chamber (e.g., App. Br. 7), while 6 U.S. Patent No. 5,522,937, issued June 4, 1996. 7 U.S. Patent No. 6,417,626 B1, issued July 9, 2002. Appeal 2012-011914 Application 12/406,407 5 Al-Shaikh describes a chamber that is used for plasma enhanced physical vapor deposition (“PEPVD”), col. 1, ll. 16-50. Appellants argue that a person of ordinary skill in the art would not look to Al-Shaikh’s PEPVD apparatus for descriptions of potential modifications of known PECVD systems (e.g., App. Br. 12-15, 19-20; Reply Br. 2). Appellants’ argument at least implicitly raises two issues: (1) whether Al-Shaikh is analogous art to the ’407 application’s claims, and (2) whether the Examiner provided an adequate reason for a person of ordinary skill in the art to have combined the teachings of Al-Shaikh with the teachings of the other references used in the various rejections. We address these questions seriatim. First, to rely upon a reference as a basis for an obviousness rejection of Appellants’ claims, the reference must either (1) be in the field of Appellants’ endeavor or (2) be reasonably pertinent to the particular problem with which the inventor was concerned. In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992). Whether or not a prior art reference is analogous is a fact question. In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992). In this case, Al-Shaikh is analogous art to the ’407 application’s claimed subject matter. The Specification describes the Appellants’ field of endeavor as “generally relate[d] to plasma processing equipment used in the processing of large area substrates, and more particularly relate to an RF current return path for such equipment.” Spec. ¶ 0002. As indicated by Al- Shaikh’s title, “Apparatus For Providing RF Return Current Path Control In A Semiconductor Wafer Processing System,” Al-Shaikh also is concerned with controlling the RF return current path in plasma processing systems. See also Al-Shaikh col. 1, ll. 7-10. Second, Appellants argue that PEPVD and PECVD are so different that a person of ordinary skill in the art would not have used structure from a Appeal 2012-011914 Application 12/406,407 6 PEPVD apparatus in a PECVD system. Appellants’ arguments, however, are not supported by factual evidence such as prior art or a declaration from an expert, inventor, or person of ordinary skill in the art. In making the rejections at issue in this appeal, the Examiner found that the prior art suggested that PECVD and PEPVD processing chambers are closely related and that a person of ordinary skill in the art can adapt technology used in one type of processing for use in the other. (E.g., Ans. 11-14 (citing Reynolds col. 7, ll. 55-59).) These factual findings are supported by citation to the prior art. Because attorney argument unsupported by evidence of record cannot overcome the Examiner’s factual findings, see Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) (“Counsel’s argument cannot take the place of evidence lacking in the record.”), we are not persuaded by this argument. In view of the foregoing, we cannot find that the Examiner erred in combining the teachings of Al-Shaikh with the teachings of the other references cited in the obviousness rejections that are the subject of this appeal. CONCLUSION For the reasons set forth above, we affirm the Examiner’s rejections of claims 1-3, 5-8, 10-12, 14, 15, and 21-25 as obvious. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED lp Copy with citationCopy as parenthetical citation