13868318 - (D) (P.T.A.B. Aug. 2, 2019)

Zhifeng Sui et al.

Patent Trials and Appeals BoardAug 2, 2019

13868318 - (D) (P.T.A.B. Aug. 2, 2019)

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. 13/868,318 04/23/2013 ZHIFENG SUI 16486USA 3532 55649 7590 08/02/2019 Moser Taboada / Applied Materials, Inc. 1030 Broad Street Suite 203 Shrewsbury, NJ 07702 EXAMINER PHAM, THOMAS T ART UNIT PAPER NUMBER 1713 NOTIFICATION DATE DELIVERY MODE 08/02/2019 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): ataboada@mtiplaw.com docketing@mtiplaw.com llinardakis@mtiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ZHIFENG SUI, MICHAEL D. ARMACOST, PHILLIP STOUT, LEI LIAN and RYAN PATZ1 ____________ Appeal 2018-006502 Application 13/868,318 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, N. WHITNEY WILSON, and LILAN REN, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants identify the real party in interest as Applied Materials, Inc. Appeal 2018-006502 Application 13/868,318 2 Appellants request our review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 6–16 and 21–22. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). STATEMENT OF THE CASE Claims 6 and 21 are illustrative of Appellants’ subject matter on appeal and are set forth below: 6. A method for monitoring a substrate process chamber, comprising: performing a process in a process chamber, providing radiation at a frequency of about 200 GHz to about 2 THz into an inner volume of the substrate process chamber through a first dielectric window disposed in a process chamber wall, wherein the radiation is reflected off of one of (A) an opposing process chamber wall or (B) one of more reflectors disposed on the opposing process chamber wall; detecting the reflected radiation after it has passed through a plasma generated in the inner volume; determining information about the plasma generated in the inner volume using a molecular rotational absorption intensity analysis on the detected reflected radiation, wherein determining the information about the plasma generated includes measuring densities and temperatures with plasma; and controlling the process based on density deviations between the measured densities and target densities and using temperature deviations between the measured temperatures and target temperatures. 21. A method for controlling a substrate process chamber, comprising: setting a predefined range of values for each of a first set of variable process parameters for a first process in a first process chamber; Appeal 2018-006502 Application 13/868,318 3 performing the first process in the first process chamber; providing radiation at a frequency of about 200 GHz to about 2 THz into an inner volume of the first process chamber through a first dielectric window disposed in a process chamber wall, wherein the radiation is reflected off of one of (A) an opposing process chamber wall or (B) one or more reflectors disposed on the opposing process chamber wall; detecting the reflected radiation after it has passed through a generated plasma in the inner volume; and determining information about the plasma generated in the inner volume using a molecular rotational absorption intensity analysis on the detected reflected radiation; and adjusting at least one of the first set of variable process parameters while the first process is being performed within the predefined range based on the information determined about the plasma generated in the inner volume. The Examiner relies on the following prior art references as evidence of unpatentability: Barrett US 4,035,643 July 12, 1977 Meijer US 4,986,654 Jan. 22, 1991 Inman US 5,818,578 Oct. 6, 1998 Fima US 5,826,984 Oct. 27, 1998 McMillin US 2004/0080050 A1 Apr. 29, 2004 Buchberger US 2007/0091537 A1 Apr. 26, 2007 Davis US 2009/0218314 A1 Sept. 3, 2009 Iwakoshi US 2010/0004795 A1 Jan. 7, 2010 Appeal 2018-006502 Application 13/868,318 4 THE REJECTIONS 1. Claim 21 is rejected under 35 U.S.C. § 112(a) or 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the written description requirement. Ans. 3. 2. Claim 21 is rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as being indefinite. Ans. 3–4. 3. Claim 9 rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre- AIA), second paragraph, as being indefinite. Ans. 4. 4. Claims 6–9 and 12–16 are rejected under pre-AIA35 U.S.C. § 103(a) as being unpatentable over McMillin in view of Barrett, Fima, Meijer, Iwakoshi, and Buchberger. Ans. 5–7. 5. Claims 10 and 11 are rejected under pre-AIA35 U.S.C. § 103(a) as being unpatentable over McMillin in view of Barrett, Fima, Meijer, Iwakoshi, and Buchberger, as applied to claim 6 above, and further in view of Davis. Ans. 7–8. 6. Claim 21 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over McMillin in view of Barrett, Fima, Meijer, and Davis. Ans. 8–9. 7. Claim 22 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over McMillin in view of Barrett, Fima, Meijer, Iwakoshi, and Buchberger, as applied to claim 6 above, and further in view of Inman. Ans. 9. ANALYSIS For purposes of this appeal, we address separately argued claims. The remaining claims stand or fall with the argued claims, consistent with 37 Appeal 2018-006502 Application 13/868,318 5 C.F.R. § 41.37(c)(1)(iv) (2017). We thus consider claims 6, 9, and 21 in this appeal. Upon consideration of the evidence and each of the respective positions set forth in the record (including the Final Office Action, the Answer, the Appeal Brief, and the Reply Brief), we find that the preponderance of evidence supports the Examiner’s findings and conclusions with regard to Rejections 1 and 2. We reverse Rejections 3–7 for the reasons indicated, infra. Also, a new ground of rejection is made, for the reasons indicated, infra. Rejection 1 The Examiner rejects claim 21 for lack of written description support. It is the Examiner’s position that there is no support for the limitation: determining information about the plasma generated in the inner volume using a molecular rotational absorption intensity analysis on the detected reflected radiation; and adjusting at least one of the first set of variable process parameters while the first process is being performed within the predefined range based on the information determined about the plasma generated in the inner volume [emphasis added]. It is the Examiner’s position that the Specification describes that only species densities and temperatures are measured from the molecular rotational absorption spectra in determining information. Ans. 3. The Examiner states that the Specification does not disclose any other useful information that is extracted from the molecular rotational absorption spectra. Ans. 3. It is the Examiner’s position that therefore, the recited limitation of “determining information” is broader in scope than taught in Appeal 2018-006502 Application 13/868,318 6 the Specification (that taught being that the information determined is species densities and temperatures). Id. Appellants’ position is set forth on pages 11–13 of the Appeal Brief. Therein, Appellants state there is a strong presumption that adequate written description is present. Appellants also refer to ¶¶ [0017] and [0018] of the Specification. Appeal Br. 11-13. Therein, Appellants also discuss “chamber setting ranges”. Appeal Br. 12. Appellants reiterate their position on pages 3–4 of the Reply Brief. In so doing, however, it appears Appellants do not adequately address the an aspect of the rejection. It is emphasized that the Examiner’s position is that the step of “determining information” about the plasma generated involves using molecular rotational absorption intensity analysis (as recited in claim 21) that measures density and temperature (according to the Specification), and therefore the term “information” or “determining information” has undue breadth because it is not limited to species density and temperature. Ans. 3. As such, it appears that Appellants do not adequately address the merits of the undue breadth aspect of this rejection. Undue breadth of the claim may be addressed under different statutory provisions, depending on the reasons for concluding that the claim is too broad. If the claim is too broad because it is not supported by the original specification or by an enabling disclosure, a rejection under 35 U.S.C. § 112, first paragraph can be appropriate. MPEP § 2173.04. In the instant case, it is the Examiner’s position that the term “determining information” regarding the plasma in claim 21 encompasses more than that described in the Specification, and therefore rejects claim 21 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. Ans. 3. Because Appellants do not adequately Appeal 2018-006502 Application 13/868,318 7 point to error regarding the undue breadth aspect of this rejection, we affirm the rejection.2 Rejection 2 The Examiner rejects claim 21 under 35 U.S.C. 112, second paragraph, as being indefinite. The Examiner states that claim 21 recites: performing the first process in the first process chamber . . . . detecting the reflected radiation after it has passed through a generated plasma in the inner volume . . . determining information about the plasma generated in the inner volume . . . adjusting at least one of the first set of variable process parameters while the first process is being performed within the predefined range based on the information determined about the plasma generated in the inner volume [emphasis added]. It is the Examiner’s position, inter alia, that the Specification discloses that density and temperature within the plasma is the information that is determined using molecular rotational absorption intensity analysis, and that this step is not recited in claim 21 (the Examiner describes it as an essential step), making the claim indefinite (in other words, making its scope unclear). Ans. 4. Stated another way, it is the Examiner’s position that the Specification discloses the type of “information” that can be analyzed using the molecular rotational absorption intensity analysis as being density and 2 We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). Appeal 2018-006502 Application 13/868,318 8 temperature, and in this regard, the claim scope regarding the term “determining information” step is unclear. Ans. 4. We refer to pages 15–16 of the Appeal Brief regarding Appellants’ position for this rejection, and Appellants reiterate their position on pages 4– 5 of the Reply Brief. Therein, Appellants do not adequately address the undue breadth aspect of this rejection. We note that a rejection involving undue breadth3 of a claim may be addressed by a rejection under 35 U.S.C. § 112, second paragraph, as being indefinite if the claim is too broad because it does not adequately set forth that which applicants regard as their invention. MPEP § 2173.04. Because Appellants do not adequately point to error regarding the undue breadth aspect of this rejection, we affirm the rejection.4 Similar to the rejection of claim 21 for indefiniteness, we enter a new ground of rejection of claim 6 (including its dependent claims 7–16 and 22) 3 It is noted that a broad claim is not indefinite merely because it encompasses a wide scope of subject matter, provided the scope is clearly defined. But a claim is indefinite when the boundaries of the protected subject matter are not clearly delineated and the scope is unclear. MPEP § 2173.04. 4 The Examiner also states that it is unclear as to how to adjust process parameters of a first process based on information determined about a plasma if that plasma is not generated by the first process, and thus claim 21 fails to recite the essential step of generating a plasma in the inner volume by the first process. Ans. 4. The Examiner believes that the term “a generated plasma” recited in claim 21 is interpreted as any plasma that is generated, and not necessarily a plasma that is generated by the first process. Ans. 4. However, we agree with Appellants that it is implicit in claim 21 that the plasma generated necessarily is from the first process. Appeal Br. 10. Appeal 2018-006502 Application 13/868,318 9 under 35 U.S.C. § 112, second paragraph, as being indefinite.5 Claim 6 recites, inter alia, determining information about the plasma generated in the inner volume using a molecular rotational absorption intensity analysis on the detected reflected radiation, wherein determining the information about the plasma generated includes measuring densities and temperatures with plasma [emphasis added]. Hence, while claim 6 recites that the step of determining the information about the plasma generated “includes” measuring densities and temperatures with plasma, the claim remains open-ended regarding what other “information” is within the scope of claim 6 because of the use of the word “includes” (see footnote 2, supra), making its scope unclear. Therefore, in a similar fashion that claim 21 is rejected under U.S.C. § 112, second paragraph, as being indefinite, claim 6 is likewise rejected (including its dependent claims 7–16 and 22). Rejection 3 The Examiner rejects claim 9 under 35 U.S.C. 112, second paragraph, as being indefinite. The Examiner states that claim 9 recites “wherein determining the information about the plasma generated in the inner volume includes fingerprinting the process chamber”. Ans. 4. The Examiner states 5 We note that the Examiner gives an interpretation of claim 6 as presented on pages 2–3 of the Final Office Action, but overlooks the word “includes” in claim 6 as written. Use of this word is open-ended as it is synonymous with words like “comprising”. The word "comprising", which is synonymous with “including,” “containing,” or “characterized by,” is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376 (Fed. Cir. 2004). Appeal 2018-006502 Application 13/868,318 10 that the Specification does not disclose how to perform the fingerprinting of the process chamber and there is no industry standard as to how such task is performed, and therefore one would not be what action to take during the fingerprinting. Ans. 4. Appellants submit that one would understand that the recited “fingerprinting” of the process chamber means obtaining a distinctive or identifying mark or characteristic of the process chamber that could be used to later uniquely identify the process chamber. Appeal Br. 14. We agree based upon the meaning given to the word “fingerprinting” as discussed by Appellants, and we thus reverse Rejection 3. Rejections 4–7 The metes and bounds of the claims are unclear and indefinite, as discussed above, to an extent that it is not possible at this time to ascertain the propriety of the prior art grounds of rejection of the rejected claims. See In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970); In re Steele, 305 F.2d 859, 862–63 (CCPA 1962). Where claims do not particularly point out and distinctly claim the invention as required by the second paragraph of 35 U.S.C. § 112, a § 103 rejection of the claims can be reversed as impermissibly involving speculative assumptions as to the meaning of the claims. Steele, 305 F.2d at 862–63. Because the rejected claims fail to particularly point out and distinctly claim Appellants’ invention as required by the second paragraph of 35 U.S.C. § 112, the obviousness rejection of these claims necessarily involves speculative assumptions as to the meaning of the claims. Under these circumstances, we must reverse each of the § 103 rejections. Appeal 2018-006502 Application 13/868,318 11 However, we emphasize that our reversal of these rejections is because the claims are indefinite; hence, a decision has not been made based on the technical merits of the obviousness rejection respecting these claims. DECISION Rejections 1 and 2 are affirmed. Rejection 3–7 are reversed. This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provide that the Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the Examiner, in which event the proceeding will be remanded to the Examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record. . . . 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). Appeal 2018-006502 Application 13/868,318 12 ORDER AFFIRMED-IN-PART NEW GROUND OF REJECTION (37 C.F.R. §41.50(b)) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ZHIFENG SUI, MICHAEL D. ARMACOST, PHILLIP STOUT, LEI LIAN and RYAN PATZ6 ____________ Appeal 2018-006502 Application 13/868,318 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, N. WHITNEY WILSON, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge, dissenting. I disagree with my colleagues’ conclusions and therefore dissent from the majority’s opinion. 6 Appellants identify the real party in interest as Applied Materials, Inc.