Ex Parte Willis

Board of Patent Appeals and Interferences

Mar 18, 2010

10447228 (B.P.A.I. Mar. 18, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JAMES WILLIS
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Appeal 2009-015370
Application 10/447,228
Technology Center 1700
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Decided: March 18, 2010
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Before MICHAEL P. COLAIANNI, BRADLEY R. GARRIS, and
TERRY J. OWENS, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-10, 12-16, 40-49 and 51-57. Claims 17-39 stand
withdrawn from consideration by the Examiner, and claims 11 and 50 have
been canceled. We have jurisdiction under 35 U.S.C. § 6(b).

Appeal 2009-015370
Application 10/447,228

The Invention
The Appellant claims a data collection system and a plasma
processing system that includes the data collection system. Claim 40, which
claims the data collection system, is illustrative:
40. An improved data collection system comprising:

a measurement device configured to provide a set of spectral data
relating to a plasma process in a plasma chamber at each of a plurality of
process times; and

a controller coupled to said measurement device and providing an
algorithm configured to extract peak data from each set of spectral data in
order to provide reduced data for improved handling, storage and
manipulation.

The References
Honigs 5,251,006 Oct. 05, 1993
Okazaki 5,949,804 Sep. 07, 1999
Kagoshima 2003/0003607 A1 Jan. 02, 2003
The Rejections
The claims stand rejected as follows: claims 1-10, 40-49, 56 and 57
under 35 U.S.C. § 102(e) over Kagoshima, and claims 12-16 and 51-55
under 35 U.S.C. § 103 over Kagoshima in view of Honigs and Okazaki.
OPINION
The Appellant argues two groups of claims: 1) independent claims 1
and 40, and 2) dependent claims 56 and 57 (Br. 4-8). Although additional
references are applied to claims 12-16 and 51-55, the Appellant does not
provide a substantive argument as to the separate patentability of those
claims (Br. 8). We therefore limit our discussion to one claim in each of the
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argued groups, i.e., claims 40 and 57. See 37 C.F.R. § 41.37(c)(1)(vii)
(2007).
Claim 40
Kagoshima discloses a plasma processing system comprising an in-
situ sensor that measures plasma luminescence during the processing
operation (¶ 0044). “The plasma luminescence includes information about
etchants or ions which dominate the process, and thus a change in the
processed result can be estimated on the basis of a change in the peak
intensity of the plasma luminescence or in the spectrum shape.” See id.
“[S]ince a change in the plasma luminescence is slight, it is desirable to
apply some numerical data processing operation to the plasma luminescence
to extract a changed component in the luminescence spectrum with a high
sensitivity” (¶ 0045). “[W]hen a statistical analysis technique, e.g., main
component analysis is employed, only changed one of many luminescence
peak components can be filtered and extracted.” See id. Kagoshima’s
Figure 8 shows, in the first row, a predetermined processing shape and, in
the second and third rows, variance in the luminescence peak due to side
wall deposits (¶ 0046). Kagoshima changes the processing recipe to correct
for the variance in luminescence (¶ 0047, Fig. 8).
The Appellant argues that Kagoshima’s extraction of a changed
component in the luminescence spectrum (¶ 0045) does not “extract peak
data” as that claim term would have been understood by one of ordinary skill
in the art (Reply Br. 3).1 The Appellant argues that in view of the

1 The Reply Brief cited herein is the Reply Brief filed on May 1, 2007. The
Reply Brief filed on May 1, 2009 repeats an argument in the May 1, 2007
Reply Brief and otherwise relies upon the May 1, 2007 Reply Brief.
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Appellant’s Specification, one of ordinary skill in the art would understand
that extracting peak data from spectral data requires determining and
extracting some identifying characteristic, such as center wavelength,
intensity or width, of a peak in a spectrum (Reply Br. 2).
During patent prosecution, claims are to be given their broadest
reasonable interpretation consistent with the Specification, as the claim
language would have been read by one of ordinary skill in the art in view of
the Specification. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989); In re
Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983). The Appellant’s Specification
refers to wavelength, intensity and width as exemplary peak parameters
(¶ 0060), but does define the claim term “peak data” as limited to those
parameters or to an identifying characteristic. Hence, the claim term
“extract peak data”, when given its broadest reasonable interpretation
consistent with the Appellant’s Specification, encompasses Kagoshima’s
extraction of a changed peak component in the luminescence spectrum
(¶ 0045).
The Appellant argues that Kagoshima characterizes the main
component analysis (¶ 0045) as a PCA (Principle Component Analysis)
(Fig. 8) and that
PCA does not “extract peak data from each set of spectral data.” On
the contrary, PCA is used to identify regions of the spectral space for
the plurality of spectral data sets that contribute most to the variance
from one spectral data set to another spectral data set. That is, PCA
illuminates regions where variations occur between spectrums,
regardless of whether these regions include peaks. PCA techniques
are simply not sensitive to intensity peaks (i.e., sharp gradients in
intensity in wavelength space), and therefore cannot determine a
characteristic of a peak in the spectrum. [Reply Br. 2-3]

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The Appellant’s argument is not well taken because it is merely
unsupported attorney argument, and arguments of counsel cannot take the
place of evidence. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Regardless, even if PCA illuminates regions whether or not there is a peak,
Kagoshima’s regions from which luminescence peak components are
extracted include a peak (Fig. 8). Hence, Kagoshima extracts peak data
from each set of spectral data as required by the Appellant’s claim 40
(¶0045-0046; Fig. 8).
The Appellant argues that what Kagoshima extracts is a changed
component of the spectrum, not the peak itself (Reply Br. 3).
The Appellant’s claim 40 recites “extract peak data”, not “extract the
peak itself”. Kagoshima’s extraction of a changed component of a
luminescence peak (¶ 0045) is extraction of peak data.
The Appellant argues that if Kagoshima’s PCA technique were
sensitive to peak data, then it would extract the three peaks to the left of the
changed luminescence peak in Figure 8 (Reply Br. 3).
The Appellant’s claim term “extract peak data from each set of
spectral data” does not require extraction of data from every peak in the
spectral data. Hence, even if Kagoshima’s technique is not sensitive to
unchanged peaks, Kagoshima’s extraction of data from a changed
luminescence peak in the spectrum (¶ 0045) meets that claim requirement.
The Appellant argues that “while Kagoshima et al. discloses obtaining
spectral data, this reference does not extract peak data from each data set,
but rather identifies differences in peaks through a comparison of spectral
data sets with one another” (Br. 5).
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As pointed out above, that identification of differences in peaks
involves extraction of peak data from each set of spectral data, which is what
the Appellant’s claim 40 requires.
For the above reasons we are not persuaded of reversible error in the
rejection of claim 40.
Claim 57
Claim 57, which depends from claim 40, requires that “said controller
is configured to further reduce the reduced data by providing a single list of
peak measured points and associating extracted peak data for each set of
spectral data with the single list of peak measurement points.”
The Appellant argues that the Examiner has acknowledged that none
of the cited references discloses the limitation in claim 57 (Br. 7).
In the Examiner’s Answer, the Examiner argues that “as spectroscopic
data is determined periodically for statistical analysis, a list is inherently
created. Without such a list no statistical processing could result” (Ans. 9).
Because that argument is plausible and is not challenged by the Appellant in
the Reply Brief (Reply Br. 4), we accept it as fact. See In re Kunzmann, 326
F.2d 424, 425 n.3 (CCPA 1964).
Accordingly, we are not convinced of reversible error in the rejection
of claim 57.
DECISION/ORDER
The rejections of claims 1-10, 40-49, 56 and 57 under
35 U.S.C. § 102(e) over Kagoshima, and claims 12-16 and 51-55 under
35 U.S.C. § 103 over Kagoshima in view of Honigs and Okazaki are
affirmed.
It is ordered that the Examiner’s decision is affirmed.
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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

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OBLON, SPIVAK, MCCLELLAND MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
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