FLOSFIA INC.

Patent Trials and Appeals Board

Sep 1, 2021

2020005498 (P.T.A.B. Sep. 1, 2021)

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.
16/231,042 12/21/2018 Masaya Oda FLOF167996 3634
26389 7590 09/01/2021
CHRISTENSEN O'CONNOR JOHNSON KINDNESS PLLC
1201 Third Avenue
Suite 3600
Seattle, WA 98101
EXAMINER
MILLER, MICHAEL G
ART UNIT PAPER NUMBER
1712
NOTIFICATION DATE DELIVERY MODE
09/01/2021 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
efiling@cojk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MASAYA ODA and TOSHIMI HITORA
Appeal 2020-005498
Application 16/231,042
Technology Center 1700

Before ADRIENE LEPIANE HANLON, KAREN M. HASTINGS, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–11 and 14–20.2 See Appeal Br. 3.
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 This Decision includes citations to the following documents:
Specification filed December 21, 2018 (“Spec.”); Final Office Action mailed
October 4, 2019 (“Final Act.”); Appeal Brief filed December 29, 2019
(“Appeal Br.”); Supplemental Appeal Brief filed February 13, 2020
(“Supplemental Appeal Br.”); Examiner’s Answer mailed May 21, 2020
(“Ans.”), and Reply Brief filed July 21, 2020 (“Reply Br.”).
2 We use the term “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Flosfia Inc. as the real party in interest.
Appeal Br. 1.
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2
CLAIMED SUBJECT MATTER
Appellant states the invention relates to a method for manufacturing
an oxide crystal thin film. Spec. ¶ 2. Claim 1, reproduced below, is
illustrative of the claimed subject matter (Appeal Br., Claims Appendix 19):
1. A method of manufacturing an oxide crystal film
comprising:
preparing a raw material solution comprising water and
at least one compound that is selected from among gallium
bromide, gallium iodide, indium bromide and indium iodide;
forming raw material particles from the raw material
solution comprising water and the at least one compound;
carrying the raw material particles to a surface of a
sample by a carrier gas; and
forming an oxide crystal film comprising a corundum
structure on the surface of the sample that comprises a
corundum structure.
Claim 14 is also independent and similarly recites a method of
manufacturing an oxide crystal film. Id. at 21.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Freese et al.
(“Freese”)
US 4,569,881 Feb. 11, 1986
Bornstein US 4,876,117 Oct. 24, 1989
Banerjee et al.
(“Banerjee”)
US 5,180,686 Jan. 19, 1993
Falcony-Guajardo
et al. (“’368
Patent”)
US 5,882,368 Mar. 16, 1999
Myoshi US 7,147,805 B2 Dec. 12, 2006
Ishida et al.
(“Ishida”)
US 2005/0051793 A1 Mar. 10, 2005
Ulmer et al.
(“Ulmer”)
US 2006/0163563 A1 July 27, 2006
Lin et al. (“Lin”) US 2008/0254231 A1 Oct. 16, 2008
Foster et al.
(“Foster”)
Analogies in the Gallia and
Alumina Systems. The Preparation
and Properties of Some Low-Alkali
Gallates,
Journal of the American Chemical
Society, Volume 73, pp 1500-1505
April 1951
Kim et al.
(“Kim”)
Optical properties of beta-Ga2O3
and alpha-Ga2O3:Co thin films
grown by spray pyrolysis, J. Appl.
Phys. 62(5), pp 2000-2002
September 1987
Karazhanov et al.
(“Karazhanov”)
Phase stability, electronic structure,
and optical structure of indium
oxide polytypes, Physical Review B
76, 075129
2007
UBC http://www.eos.ubc.ca/courses/Dist-
Ed/eosc118-webpromo/01-modB-
les17-webpromo.html
Accessed Aug. 6,
2015

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REJECTIONS
1. Claims 1, 3–6, 8, 9, and 20 are rejected under 35 U.S.C. § 103
as being unpatentable over Kim, Banerjee, Lin, Ishida, Foster,
and UBC. Final Act. 3–8.
2. Claims 1, 2, 4–7, 9, 14, 15, 18, and 19 are rejected under 35
U.S.C. § 103 as being unpatentable over Bornstein, Miyoshi,
the ’368 Patent, Karazhanov, Freese, and UBC.
Final Act. 8–13.
3. Claims 10, 11, 16, and 17 are rejected under 35 U.S.C. § 103 as
being unpatentable over Bornstein, Miyoshi, the ’368 Patent,
Karazhanov, Freese, UBC, and Ulmer. Final Act. 14–15.

OPINION
Rejection 1
Appellant presents separate arguments with respect to claims 1, 3, 8,
and 20 subject to this rejection. See Appeal Br. 9. We select claims 1 and 3
as representative for disposition of this rejection. 37 C.F.R.
§ 41.37(c)(1)(iv)(2019).

Claim 1
The Examiner’s Rejection
In rejecting claim 1 as unpatentable over Kim, Banerjee, Lin, Ishida,
Foster, and UBC, the Examiner found Kim discloses a method for
manufacturing an oxide crystal film, including crystalline alpha-gallia thin
films from a raw material solution including water and gallium chloride.
Final Act. 4. The Examiner found Kim does not disclose gallium iodide,
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gallium bromide, or the indium compounds, carrying the particles by a
carrier gas, or the particular crystal structure for the substrate recited in
claim 1. Id. at 5. The Examiner found Banerjee discloses depositing an
oxide material by a spray pyrolysis method to uniformly deliver a mixture
across at least one dimension of a substrate. Id. The Examiner found Lin
discloses both gallium chloride/water and gallium bromide/water are known
alternatives for forming gallium oxide. Id. at 5–6. As a result, the Examiner
determined it would have been obvious to have used gallium bromide in
water as a precursor material to form the gallium oxide film in Kim. Id. at 6.
The Examiner found Ishida discloses a method of forming a gallium
oxide gate insulating film layer on a semiconductor substrate comprising
sapphire. Final Act. 6. The Examiner determined it would have been
obvious to have formed the gallium oxide film on a sapphire substrate as
disclosed in Ishida because Lin discloses gallium oxide as protective layers
and Ishida discloses gallium oxide as insulating layers in systems
comprising sapphire substrates. Id. at 6–7. The Examiner found that UBC
provides evidence that sapphire is blue corundum and necessarily has a
corundum structure. Id. at 7.

Appellant’s Arguments
Appellant argues the claimed method including at least one compound
selected from gallium bromide, gallium iodide, indium bromide, and indium
iodide achieves significantly reduced carbon impurity concentration and
increased film forming speed, which not only demonstrate unpredictable
effects, but also rebuts the Examiner’s position that it would have been
obvious to use gallium bromide or gallium iodide instead of gallium chloride
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due to the similarity of the chemical structures. Appeal Br. 4–8. Appellant
contends also the combination of Lin, Ishida, and UBC do not render the
claims obvious because Lin is silent about the phase transition of gallium
oxides such that Lin shows there is no reasonable expectation of similar
properties in structurally similar compounds. Appeal Br. 8–9.

Discussion
We are not persuaded by Appellant’s arguments that the recited
gallium bromide and gallium iodide achieve unpredictable effects with
respect to a significantly reduced carbon impurity concentration and an
increased film forming speed relative to gallium chloride. Initially, we
observe that the reduced carbon impurity concentration appears to be due to
the use of metal halides as precursors relative to carbon containing
precursors. See Spec. ¶ 22 (“Note that in order to reduce the carbon
impurity concentration, a metal compound included in the raw material
solution is preferably free of carbon atoms.”). Thus, gallium bromide or
gallium iodide do not appear to offer an advantage in this regard over
gallium chloride. Compare “impurities” column of Table 1, Examples 9 and
10 (gallium chloride) with Examples 11–13 (gallium bromide and gallium
iodide). Spec. ¶ 44.
Regarding the film forming speed, the Examiner points out that the
claims encompass any raw material solution comprising water and at least
one of the claimed compounds under any transportation and formation
process, whereas the Appellant has provided a single data point for most of
the claimed precursors and two data points for gallium iodide. Ans. 4.
Although Appellant contends that the results do not rely on any particular
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concentration or flow rate of carrier gas (Appeal Br. 6), the Specification
indicates that such variables may alter the film forming properties. Spec.
¶ 40 (“The reason why a film was successfully formed, albeit at low speed,
in Examples 9 and 10 although film formation failed in Non-Patent
Document 1 is assumed to be related to the different flow rate of the carrier
gas or the different concentration of the raw material solution.”). Thus, we
do not find it reasonable for Appellant to rely on experimental results
without addressing the particular conditions used to generate such results.
In this regard, for the gallium iodide examples, the carrier gas flow
rate is greater than used for gallium chloride. Spec. ¶ 44, Table 1, Examples
12 and 13 (gallium iodide, carrier gas flow rate 5 L/min), Examples 9 and 10
(gallium chloride, carrier gas flow rate 3 L/min). As such, given the
recognized influence of carrier gas flow rate on film formation discussed
above, we are of the view that there is insufficient evidence to attribute the
increased film forming speed of gallium iodide relative to gallium chloride
to the identity of the gallium species alone.
In addition, the gallium iodide examples provide evidence that
concentration alone influences film forming speed, as the raw material in
Example 13 contains gallium iodide at increased concentration relative to
Example 12, and produced a greater film forming speed. Id., Example 12
(concentration 0.05 mol/L, film forming speed 16.0 nm/min) and Example
13 (concentration 0.2 mol/L, film forming speed 55.0 nm/min).
Although we recognize that a smaller increase in concentration in
gallium chloride did not produce an increase in film forming speed for
gallium chloride (Example 9 (concentration 0.1 mol/L, film forming speed
5.0 nm/min) and Example 10 (concentration 0.15 mol/L, film forming speed
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1.5 nm/min)), the acknowledged effect of carrier gas flow rate and
concentration on film formation discussed above combined with the small
number of data points does not sufficiently support Appellant’s position that
the data is sufficient to demonstrate unexpected results. That is, because of
the small sample data presented, we are unable to ascertain whether the
difference in film forming speed observed in the examples would be
consistently observed over the entirety of the scope of the claims, or that by
simply optimizing the conditions, such as concentration or carrier gas flow
rate, one of ordinary skill in the art would have been able to obtain similar
results with gallium chloride as seen for gallium bromide or gallium iodide.
Although we agree with the general principle set forth by Appellant
that no set number of examples is required in order to demonstrate
unexpected results (Reply Br. 2), the scope of the “objective evidence of
nonobviousness must be commensurate in scope with the claims which the
evidence is offered to support.” In re Tiffin, 448 F.2d 791, 792 (CCPA
1971); see also In re Peterson, 315 F.3d 1325, 1329-31 (Fed. Cir. 2003). In
this case, while the results in Table 1 appear to show a level of improvement
in film forming speed of gallium bromide and gallium iodide as compared to
gallium chloride under certain conditions, the results are insufficient to
indicate that such improvements would be obtained to a sufficient extent
over the entire scope of the claims including various conditions and
compositions included therein.
For similar reasons, we are not persuaded by Appellant’s argument
that the data is sufficient to rebut the Examiner’s rationale that it would have
been obvious to have used gallium bromide instead of gallium chloride
because of the close structural similarity and similar utility of both to form
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gallium oxide. Appeal Br. 6–8; Final Act. 6; Ans. 5. As discussed above,
the data relied on by Appellant is insufficient to demonstrate that gallium
bromide is not predictably interchangeable with gallium chloride in view of
Lin’s disclosure that both may be used to form gallium oxide. Lin, Fig. 2B.
That is, that one of ordinary skill in the art may have to optimize the
conditions used to generate gallium oxide films based on different
precursors does not mean that the use of different precursors is
unpredictable, particularly in light of the known effects of concentration and
carrier gas flow rate on film deposition discussed above.
We are further not persuaded by Appellant’s argument that the
teachings of Lin, Ishida, and UBC do not render the claims obvious. Appeal
Br. 8–9. As the Examiner explains (Ans. 5–7), in pointing out certain
deficiencies of each of these references, Appellant fails to account for the
Examiner’s rejection as a whole, which details how the alleged deficiencies
in each individual reference are met.
The ultimate determination of whether a claimed invention would
have been obvious or non-obvious is a legal conclusion, which is made
based on considering and weighing all of the facts in evidence. See In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Furthermore, where the
evidence of prima facie obviousness is particularly strong, evidence
regarding unexpected results may be insufficient to overcome the evidence
of prima facie obviousness. See Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348,
1372 (Fed. Cir. 2007). In this case, as explained above, Appellant’s
arguments and evidence are insufficient to outweigh the Examiner’s position
that claim 1 would have been obvious over the prior art of record.

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Accordingly, we affirm the Examiner’s rejection of claims 1, 4–6, and
9.

Claims 3, 8, 20
Claim 3, as a representative claim, depends from claim 1 and recites
“the oxide crystal film comprising the corundum structure comprises an α-
phase Ga2O3 crystal.”
Appellant contends that it is known that ß-Ga2O3 is the most stable
phase of gallium oxide, and that Kim discloses ß-Ga2O3 and α-Ga2O3 are
grown at the same temperature, such that Kim taches a totally different
method than the claimed method. Appeal Br. 9–10. The Examiner explains
that Kim provides a clear method for forming α-Ga2O3 film. Ans. 7. We
agree with the Examiner.
Kim discloses preparing an α-Ga2O3 film, where gallium chloride is
doped with cobalt chloride. Kim 2000, col. 1, “II. EXPERIMENTAL
PROCEDURE.” That Kim also discloses preparation of ß-Ga2O3 film does
not take away from this teaching. Appellant does not sufficiently explain
why Kim’s method as modified and detailed in the Examiner’s rejection
(Final Act. 4–7) would not produce an α-Ga2O3 film simply because Kim
discloses ß-Ga2O3 and α-Ga2O3 are grown at the same temperature. Thus,
Appellant’s arguments are not persuasive.
Accordingly, we affirm the Examiner’s rejection of claims 3, 8, and
20.

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Rejection 2
Appellant presents separate arguments with respect to claims 1, 2, 7,
and 15 subject to this rejection. See Appeal Br. 17–18. We select claims 1
and 2 as representative for disposition of this rejection. 37 C.F.R.
§ 41.37(c)(1)(iv)(2019).
Claim 1
The Examiner’s Rejection
In rejecting claim 1 as unpatentable over Bornstein, Miyoshi, the ’368
Patent, Karazhanov, Freese, and UBC, the Examiner found Bornstein
discloses a method for manufacturing an oxide crystal film by spraying a
raw material including an organic solvent and a metal-containing compound
on a substrate. Final Act. 8. The Examiner found Bornstein discloses metal
precursor solutions including metals such as indium and metal halides, but
does not expressly disclose indium bromide or indium iodide or water as a
solvent. Id. at 8–9. The Examiner found Miyoshi discloses a composition
for forming indium tin oxide (ITO) films, which includes mixing a water-
soluble indium compound such as indium bromide or indium iodide. Id.
at 9. The Examiner determined it would have been obvious to have
modified Bornstein to include aqueous solutions of indium bromide and/or
indium iodide as suggested by Miyoshi, because Bornstein separately
considers indium sources and metal halides as desirable materials for the
formation of metal oxide films on a substrate. Id.
The Examiner relied on Karazhanov for disclosing that indium oxide
is crystalline, and that the corundum structure of indium oxide produces
superior stability and conductivity relative to other crystalline structures of
indium oxide. Final Act. 10–11. As a result, the Examiner determined it
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would have been obvious to have formed the crystalline structure of indium
oxide as the corundum structure for use in magnetic recording media as
disclosed in Bornstein and Miyoshi. Id. at 11. The Examiner found that
Freese discloses sapphire substrates, which as evidenced by UBC is blue
corundum, are known acceptable substrates for magnetic recording disk,
such that it would have been obvious to use such a substrate for use in
combination with Bornstein and Miyoshi. Id. at 11–12.

Appellant’s Arguments
Appellant argues Bornstein only discloses transition metal halide
precursors and does not disclose any metal halide includes indium. Appeal
Br. 11. Appellant argues that any presumption that Bornstein discloses
chlorides, bromides, and iodides are similar in function has been overcome
by the comparative data in Appellant’s Specification, which discloses that
indium bromide and indium iodide unpredictably leads to faster film
forming speeds as compared to indium chloride. Id. at 12. In this regard,
Appellant argues Miyoshi discloses indium chloride, indium bromide, and
indium iodide to be equivalent and Appellant has demonstrated that this is
not the case. Id. at 12–13. Appellant contends there is no reason to combine
Miyoshi with Bornstein, because the metal oxide precursor in Bornstein is
cured at lower temperatures than the indium compounds disclosed in
Miyoshi, such that the compounds in Miyoshi would be incompatible with
the process disclosed in Bornstein. Id. at 13–14. Appellant argues that it
would not have been obvious to have modified Bornstein to use water
instead of organic solvents, because Bornstein discloses “suitable” metal
halides are those that are dissolved in certain organic solvents, such that
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Miyoshi’s disclosure of water-soluble indium halides would not be a
“suitable” metal halide in the context of Bornstein. Id. at 15–17.

Discussion
Initially, we are not persuaded by Appellant’s argument that Bornstein
only discloses transition metal halides. As the Examiner found (Ans. 8),
Bornstein is not limited to transition metal halides, but discloses liquid metal
precursors including metal halides where the metal is indium. Bornstein,
col. 6, ll. 12–29, claims 1 and 2. In addition, we are not persuaded by
Appellant’s argument that Bornstein does not disclose all of the limitations
of the method recited in claim 1 (Appeal Br. 11), because, as the Examiner
explains, Appellant does not address the Examiner’s combination, which
relies on a combination of references in order to conclude the method of
claim 1 would have been obvious. Ans. 8–9.
We are also not persuaded by Appellant’s argument that the
experimental data in the Specification is sufficient to demonstrate indium
bromide or indium iodide are not interchangeable with indium chloride.
Appeal Br. 12–13. As to any reduced carbon impurity concentration, we are
not persuaded by this argument for similar reasons as discussed above with
respect to Rejection 1. Compare “impurities” column of Table 1, Example
15 (indium chloride) with Examples 16 and 17 (indium bromide and indium
iodide). Spec. ¶ 44.
As to the results shown for indium bromide and indium iodide relative
to indium chloride, we acknowledge that at the particular conditions for the
single example of each compound tested (raw material concentration and
carrier gas flow rate), there does appear to be a measurable improvement in
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film forming speed. Spec. ¶ 44, Table 1, Experiments 15–17. However, the
claims are not limited to such conditions, and as discussed above, the sample
size of data, in our view, is insufficient to support the breadth of the claims,
even acknowledging that claim 14 is limited to indium bromide and indium
iodide.
Thus, while the results in Table 1 appear to show a level of
improvement in film forming speed of indium bromide and indium iodide as
compared to indium chloride under certain conditions, the results are
insufficient to indicate that such improvements would be obtained to a
sufficient extent over the entire scope of the claims including various
conditions and compositions included therein. For similar reasons, we are
not persuaded by Appellant’s argument that the data is sufficient to rebut the
Examiner’s rationale that it would have been obvious to have used indium
bromide or indium iodide because Miyoshi considers indium chloride,
indium bromide, and indium iodide to be equivalent. Appeal Br. 12–13;
Final Act. 9; Ans. 9.
Further, we are not persuaded by Appellant’s argument that Bornstein
and Miyoshi cannot be combined due to the alleged differences between the
curing temperatures disclosed in Bornstein and the firing temperatures
disclosed in Miyoshi. Appeal Br. 13–14. As the Examiner explains,
Bornstein and Miyoshi disclose temperatures that overlap, such that
Appellant’s reliance on preferred embodiments of each individual reference
is not persuasive. Ans. 9. We are of the view the Examiner’s position is
supported by the record. That is, Bornstein discloses “the liquid precursor is
cured at a moderate elevated temperature, typically in the range from about
100° to 300° C.” Bornstein, col. 2, ll. 23–25. Miyoshi discloses “[f]iring
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can be carried out, for example, at about 300 to about 700° C.” Miyoshi,
col. 17, ll. 13–14. Accordingly, Appellant’s argument is not persuasive.
We are also not persuaded by Appellant’s argument that the use of
water would be a change in the principle of operation of Bornstein, because
Bornstein discloses that “suitable” metal halides are all soluble in organic
solvents. Appeal Br. 14–17. Although Bornstein discloses suitable
transition metal halides are soluble in organic solvents (col. 4, ll. 3–37), we
do not view such disclosures as limiting to all the metal halide precursors
disclosed in Bornstein. Rather, with respect to the choice of solvent
Bornstein merely requires only that “sufficient solvent must be present to
dissolve the metal oxide precursor” and that the metal oxide material is
“cured at an elevated temperature for a time sufficient to evaporate the
solvent.” Bornstein, col. 4, ll. 55–65. Thus, we are not persuaded that using
water as a solvent as disclosed in Miyoshi (col. 3, ll. 38–43, col. 8, ll. 55–64)
would be contrary to the principle of operation of Bornstein, where both
references disclose forming indium oxide films. Ans. 10–11; Miyoshi, col.
6, ll. 4–8; Bornstein, col. 4, ll. 55–65.
Accordingly, after weighing the evidence as a whole, we affirm the
Examiner’s rejection of claims 1, 4–6, 9, 14, 18, and 19 for the reasons
discussed above.

Claims 2, 7, 15
Representative claim 2 depends from claim 1, and further recites “the
oxide crystal film comprising the corundum structure comprises α-phase
In2O3 crystal.”
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Appellant contends that it is known that the most stable phase of
indium oxide is a bixbyte structure, and it is difficult to grow an α-phase
In2O3 crystal therefrom with good reproducibility. Appeal Br. 17.
We are not persuaded by Appellant’s arguments for the reasons given
by the Examiner. Ans. 11. In particular, as the Examiner points out,
Karazhanov provides evidence of an α-phase In2O3 crystal, which Appellant
has not rebutted. Karazhanov 2. That there may be some difficulty
associated with producing the structure recited in claim 2, does not mean
that such a structure would not have been obvious.
Accordingly, we affirm the Examiner’s rejection of claims 2, 7, and
15.

Rejection 3
Regarding the rejection of claims 10, 11, 16, and 17, Appellant does
not separately argue this rejection. See Appeal Br. 18.
Accordingly, we affirm the Examiner’s rejection for similar reasons as
discussed above with respect to Rejection 2.

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–6, 8, 9,
20
103 Kim, Banerjee, Lin,
Ishida, Foster, UBC
1, 3–6, 8, 9, 20
1, 2, 4–7, 9,
14, 15, 18,
19
103 Bornstein, Miyoshi,
the ’368 Patent,
Karazhanov, Freese,
UBC
1, 2, 4–7, 9, 14,
15, 18, 19

10, 11, 16,
17
103 Bornstein, Miyoshi,
the ’368 Patent,
Karazhanov, Freese,
UBC, Ulmer
10, 11, 16, 17
Overall
Outcome
1–11, 14–20

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED