Nagase, Masaaki et al.

Patent Trials and Appeals Board

Nov 18, 2019

14170953 - (D) (P.T.A.B. Nov. 18, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/170,953 02/03/2014 Masaaki Nagase
23552 7590 11/22/2019
MERCHANT & GOULD P.C.
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
18548. 0002FPI1 8633
EXAMINER
CHEN, KEATH T
ART UNIT PAPER NUMBER
1716
NOTIFICATION DATE DELIVERY MODE
11/22/2019 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):
USPT023552@merchantgould.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MASAAKI NAGASE,
ATSUSHI HIDAKA, KAORU HIRATA, RYOUSUKE DORI,
KOUJI NISHINO, and NOBUKAZU IKEDA
Appeal2018-008570
Application 14/170,953
Technology Center 1700
Before GEORGE C. BEST, JEFFREY R. SNAY, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner's decision to reject claims 1, 2, and 4--92 of Application
1 We use the word "Appellant" to refer to "Applicant" as defined in 37
C.F.R. § 1.42. Appellant identifies Fujikin, Inc., as the real party in interest.
Appeal Br. 1.
2 Appellant has canceled claim 3 by amendment after entry of the Final
Action. Amendment (E) After Final (September 18, 2017) ( entered
September 25, 2017).
Appeal2018-008570
Application 14/170,953
14/170,953. Final Act. (June 20, 2017). We have jurisdiction under
35 U.S.C. § 6.
An oral hearing was held in this appeal on October 31, 2019. 3
For the reasons set forth below, we affirm.
I. BACKGROUND
The '953 Application describes a raw material vaporizing and
supplying apparatus useful in semiconductor manufacturing equipment that
carries out the metallic organic chemical vapor deposition process. Spec.
,r 1. 4 The raw material vaporizing and supplying apparatus is said to be
capable of supplying raw material gas while controlling the flow rate of even
a liquid or solid raw material at a low gas pressure with a high degree of
accuracy. Id.
Claim 1 is representative of the '953 Application's claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
1. A raw material vaporizing and supplying apparatus
arranged to employ a baking method, the apparatus comprising:
a source tank operably connected for storing and vaporizing
raw material;
a raw material gas supply channel operably connected to supply
raw material gas from an internal space portion of the source
tank to a process chamber;
3 A transcript of the hearing will be added to the record of the '953
Application when it becomes available.
4 In the Appeal Brief, Appellant cites both the originally-filed Specification
and the pre-grant publication of the '953 Application. Compare Appeal Br.
2--4 with Appeal Br. 6. We shall follow our practice of citing only the
originally-filed Specification.
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Application 14/170,953
a pressure type flow rate control system installed along the way
of the supply channel, the pressure type flow rate control
system controlling a flow rate of raw material gas supplied to
the process chamber;
a constant temperature heating unit that heats the source tank,
the raw material gas supply channel, and the pressure type flow
rate control system to a set temperature;
wherein raw material gas is generated in the internal space
portion of the source tank by heating the source tank, and
thereafter is supplied to the process chamber while the pressure
type flow rate control system performs flow rate control,
wherein the pressure type flow rate control system is configured
to control a flow rate of raw material gas from the source tank
that is pure raw material gas without containing a dilution gas
and comprises a control valve (CV), a temperature detector (T)
and a pressure detector (P) provided on a downstream side of
the control valve (CV), an orifice provided on a downstream
side of the pressure detector (P), an arithmetic and control unit
operably connected to perform a temperature correction of a
flow rate of the raw material gas computed by use of a detection
value from the pressure detector (P), on the basis of a detection
value from the temperature detector (T), and comparing a
predetermined flow rate of the raw material gas and a computed
flow rate, so as to output a control signal (Pd) for controlling
opening or closing of the control valve (CV) in a direction
whereby a difference between the both flow rates is reduced,
and
wherein a branched purge gas supply channel is connected to a
primary side of the pressure type flow rate control system, and
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Application 14/170,953
a branched dilution gas supply channel is connected to a
secondary side of the pressure type flow rate control system.
Appeal Br. 10-11.
II. REJECTIONS
On appeal, the Examiner maintains5 the following rejections:
1. Claims 1, 2, and 4--7 are rejected under 35 U.S.C. § I03(a) as
unpatentable over the combination of Hirata, 6 Lowery, 7 and
Sarigiannis. 8 Final Act. 14--17.
2. Claims 1, 2, and 4--8 are rejected under 35 U.S.C. § I03(a) as
unpatentable over the combination of Hirata, Lowery, Sarigiannis,
and Kim. 9 Final Act. 1 7-18.
3. Claim 9 is rejected under 35 U.S.C. § I03(a) as unpatentable over
the combination of Hirata, Lowery, and McMenamin. 1° Final Act.
18-20.
5 We have restated the grounds of rejection at issue to reflect Appellant's
Amendment After Final. In this Amendment, Appellant incorporated the
limitations of dependent claim 3 in the independent claim 1 and canceled
claim 3. Amendment (E) After Final (September 18, 2017) (entered
September 25, 2017). In an Advisory Action, the Examiner maintained the
rejection of claim 1 on the basis used to reject claim 3. Advisory Action
(September 25, 2017).
6 US 2010/0012026 Al, published January 21, 2010.
7 US 2002/0174898 Al, published November 28, 2002.
8 US 2009/0214779 Al, published August 27, 2009.
9 US 6,656,282 B2, issued December 2, 2003.
10 US 4,393,013, issued July 12, 1983.
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Application 14/170,953
III. DISCUSSION
After entry of the Final Action, Appellant sought to amend the claims
in the '953 Application. Amendment (E) After Final (September 18, 2017).
The proposed amendments to the claims were entered on September 25,
2017. Advisory Action 5. In these amendments, Appellant, inter alia,
amended claim 1 to incorporate the limitations recited in dependent claim 3
and canceled claim 3. Id. at 2.
Appellant argues for reversal of all of the rejections at issue based
upon the limitations in amended claim 1. See Appeal Br. 5-9. We, therefore,
select amended claim 1 as representative of the claims subject to this ground
of rejection and limit our discussion to this claim. 37 C.F.R. §
4I.37(c)(l)(iv).
A. Rejection of claims 1, 2, and 4-7 as unpatentable over the
combination of Hirata, Lowery, and Sarigiannis.
According to Appellant, the combination of Hirata, Lowery, and
Sarigiannis does not describe or suggest the following elements of claim 1:
( 1) "a pressure type flow rate control system installed along the way of the
supply channel, the pressure type flow rate control system controlling a flow
rate of a raw material gas supplied to the process chamber" and (2) "a
branched purge gas supply channel ... connected to a primary side of the
pressure type flow rate control system, and a branched dilution gas supply
channel ... connected to a secondary side of the pressure type flow rate
control system." Appeal Br. 7.
First, Appellant argues that neither Hirata nor Lowery describes or
suggests the claimed pressure type flow rate control system installed along
the way of the supply channel. Appeal Br. 6; Reply Br. 2-3.
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Application 14/170,953
In the Final Action, the Examiner found that Hirata describes the
claimed pressure type flow rate control system. Final Act. 5 ( citing Hirata
,r,r 51, 97; Fig. 1 ). In particular, the Examiner found that Hirata describes an
"[a]utomatic pressure regulating device for source tank 15 ([0051]), while
being supplied to the process chamber 11, the flow rate of mixed gas Go is
controlled with high accuracy through valve Vo at a constant mixture ratio
and a predetermined flow rate value ([0097], last sentence[)]." Id.
( discussing Hirata Fig. 1 ).
Appellant argues that the arrangement shown in Hirata would not
allow the pressure type flow rate control system to accurately control the
mixture ratio of the gas. Appeal Br. 6 (citing Spec. ,r,r 33-34). Appellant,
however, does not provide any evidence or explanation of why Hirata's flow
rate control system would be unable to control the mixture ratio of the gas.
Id. Appellant's unsupported assertion is not persuasive of the existence of
reversible error. 11
11 We note that the Appeal Brief contains the following passage: "Applicants
maintain all of their previous arguments of record and incorporate them
herein." Appeal Br. 6. In pertinent part, our rules provide that the argument
section of the brief shall contain
[t]he arguments of appellant with respect to each ground of
rejection, and the basis therefor, with citations of statutes,
regulations, authorities, and parts of the Record relied on ....
Except as provided for in §§41.41, 41.47 and 41.52, any
arguments or authorities not included in the appeal brief will
be refused consideration by the Board for the purposes of the
present appeal.
37 C.F.R. § 4I.37(c)(l)(iv) (emphasis added). Incorporation by reference,
therefore, is not sufficient to present an argument for reversal. See DeSilva v.
DiLeonardi, 181 F .3d 865, 867 (7th Cir. 1999) ("A brief must make all
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Application 14/170,953
Appellant, therefore, has not persuaded us that the Examiner
reversibly erred in finding that Hirata describes the claimed pressure type
flow rate control system.
Moreover, the Examiner also found, in the alternative, that Lowery
describes the claimed pressure type flow rate control system. Final Act. 9-10
(citing Lowery ,r,r 20, 27). In particular, the Examiner found that Lowery's
meter system 20 comprises a mechanical system 22 and an
electrical system 24. The mechanical system 22 comprises a
flow restrictor 30 defining a restriction chamber 32 and a
pressure balancing system 34. The electrical system 24
comprises a pressure sensor 40, a temperature sensor 42, and a
meter circuit 44 ([0020], 2nd and 3rd sentences, the claimed "a
pressure type flow rate control system installed along the way
of the supply channel")[.] The meter circuit 44 stores or
otherwise has access to calibration data relating mass flow rate
to pressure and temperature for a given fluid ([0027], the
pressure sensor 40 of the electrical system 24, together, is the
claimed "the pressure type flow rate control system controlling
a flow rate of raw material gas supplied to the process
chamber" ... ) [.]
Final Act. 9-10 ( discussing Lowery Fig. 1 ).
The Appeal Brief does not address this finding in any way. See
Appeal Br. 5-9. Appellant, therefore, has waived the ability to challenge the
correctness of the finding that Lowery describes or suggests the claimed
pressure type flow rate control system. 12
arguments accessible to the judges, rather than asked them to play
archaeologists with the record.").
12 The Reply Brief contains an unsupported assertion that Lowery's pressure
type flow rate control system cannot accurately control the flow rate of the
high-speed flow gas. Reply Br. 3. We will not consider this untimely
argument because Appellant has not explained why it could not have been
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In view of the foregoing, we are not persuaded that Appellant has
demonstrated that the Examiner reversibly erred in finding that the
combination of Hirata, Lowery, and Sarigiannis describes or suggests the
claimed "pressure type flow rate control system installed along the way of
the supply channel, the pressure type flow rate control system controlling a
flow rate of a raw material gas supplied to the process chamber."
Second, the Examiner found that Sarigiannis describes the claimed
branched purge gas supply channel and branched dilution gas supply
channel. Final Act. 14--15 ( citing Sarigiannis Fig. 16).
According to Appellant, Sarigiannis does not describe or suggest the
claimed pressure type flow rate control system and, therefore, cannot
describe or suggest the claimed locations for connection of the branched
purge gas supply channel and branched dilution gas supply channel. Appeal
Br. 6-7. 13
The Examiner responds that "[a] person of ordinary skill in the art
would have known to add the purge gas and the dilution gas at the two sides
of the control valve." Answer 13. The Examiner further responds that the
raised in the Appeal Brief. See 37 C.F.R. § 37 C.F.R. § 41.37(c)(l)(iv); Ex
parte Nakashima, 93 USPQ2d 1834 (BP AI 2010) (informative) ( explaining
that arguments and evidence not timely presented in the Principal Brief will
not be considered when filed in a Reply Brief, absent a showing of good
cause explaining why the argument could not have been presented in the
Principal Brief).
13 We note that Appellant's Reply Brief presents an argument regarding
Sarigiannis that is not set forth in the Appeal Brief. See Reply Br. 3 ( arguing
that there is no motivation to combine Sarigiannis with Hirata). For the
reasons set forth in footnote 12, above, we will not consider this untimely
argument.
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Application 14/170,953
location to add the dilution gas must be downstream of the flow rate control
system. Id. According to the Examiner, if the dilution gas is attached
between the components of the pressure type flow rate control system, the
pressure type flow rate control system would not function properly. Id.
Moreover, locating the dilution gas channel attachment point upstream from
the pressure type flow rate control system would be redundant because the
purge gas supply already provides an inert gas supply to the region of the
apparatus upstream of the pressure type flow rate control system. Id.
We determine that the Examiner has provided adequate reasoning to
rebut Appellant's unsupported assertion. We, therefore, are not persuaded
that Appellant has established the existence of reversible error regarding the
Examiner's finding that Sarigiannis describes or suggests the claimed
branched purge gas supply channel and branched dilution gas supply
channel.
In view of the foregoing, we determine that the Examiner did not
reversibly err in rejecting claim 1, as amended, as unpatentable over the
combination of Hirata, Lowery, and Sarigiannis. Accordingly, we also
affirm the rejection of claims 2 and 4--7, which depend from claim 1.
B. Rejection of claims 1, 2, and 4---8 as unpatentable over the
combination of Hirata, Lowery, Sarigiannis, and Kim.
Appellant argues that the rejection of claims 1, 2, and 4--8 as
unpatentable over the combination of Hirata, Lowery, Sarigiannis, and Kim
should be reversed for the reasons set forth in arguing for reversal of the
rejection over the combination of Hirata, Lowery, and Sarigiannis. See
Appeal Br. 9 ("[T]he Examiner has not established a prima facie case of
§ 103 obviousness against claims 1-2 and 4--9 because the combination of
Hirata, Lowery, and Sarigiannis, with or without Kim or McMenamin, does
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not teach each and every limitation is recited in sole independent claim 1, as
amended.").
For the reasons set forth above, we have affirmed the rejection of
independent claim 1 as unpatentable over the combination of Hirata,
Lowery, and Sarigiannis. We, therefore, also affirm the rejection of claims 1,
2, and 4--8 as unpatentable over the combination of Hirata, Lowery,
Sarigiannis, and Kim.
C. Rejection of claim 9 as unpatentable over the accommodation
of Hirata, Lowery, and McMenamin.
Appellant argues that the rejection of claim 9 is unpatentable over the
combination of Hirata, Lowery, and McMenamin should be reversed
because the Examiner has not established a prima facie case of obviousness
with respect independent claim 1. Appeal Br. 9. As discussed above, we
have affirmed the rejection of claim 1. We, therefore, also affirm the
rejection of claim 9.
IV. CONCLUSION
In summary:
1, 2, 4--7 103(a) Hirata, Lowery, Sarigiannis 1, 2, 4--7
1, 2, 4--8 103(a) Hirata, Lowery, Sarigiannis, Kim 1, 2, 4--8
9 103(a) Hirata, Lowery, McMenamin 9
Overall Outcome 1, 2, 4--9
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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