Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant’s amendments, filed 8/15/2025, have been fully considered and reviewed by the examiner. The examiner notes the amendment to the claims, and the addition of new claims 24-26. Claims 1, 7, 10-11, 14-16, 20-26 are pending, with claim 20 withdrawn due to a restriction requirement.
The declaration under 37 CFR 1.132 filed 8/15/2025 is insufficient to overcome the rejection of claims based upon the cited prior art as set forth in the last Office action because:
In assessing the probative value of an expert opinion, the examiner must consider the nature of the matter sought to be established, the strength of any opposing evidence, the interest of the expert in the outcome of the case, and the presence or absence of factual support for the expert’s opinion. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 227 USPQ 657 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986). Here, the declarant is a named inventor and therefore is an interested party in the instant application.
Although factual evidence is preferable to opinion testimony, such testimony is entitled to consideration and some weight so long as the opinion is not on the ultimate legal conclusion at issue. While an opinion as to a legal conclusion is not entitled to any weight, the underlying basis for the opinion may be persuasive. In re Chilowsky, 306 F.2d 908, 134 USPQ 515 (CCPA 1962). Here, the Declarant argues that “in my opinion . . . the formation of diamond films for electronic devices and etching channels in diamond layers, a person ordinary skill in the art would not combine the teachings [of cited prior art] to provide the method of claim 1” is opinion testimony to the legal conclusion of obviousness. Declarant offers additional opinions as to the obviousness and prima facie case set forth by the examiner and the opinion testimony of the interest party is determined to be unpersuasive and the examiner has only considered the underlying factual evidence.
Declarant argues that a high Young’s modulus greater than 325 GPa and a roughness less than 10 nm rms is not easily achieved because there is a tradeoff between increasing Young’s modulus and roughness. The examiner notes this assertion; however, generally, Williams which discloses adjusting the process parameters to achieve a Young Modulus and roughness within the range as claimed (Section 3.1 as it relates to RMS, stating “5 nm r.m.s.” and “around 9 nm r.m.s. and Youngs Modulus at Figure 5) by adjusting the growth parameters, including specifically the methane concentration. Here, the Declarant’s have not provided any commensurate showing of factual evidence that the instant claimed process steps would provide unexpected results or unpredictability in face of the prior art disclosure that rebuts this general assertion by the Declarant.
Declarant argue that none of Liu, Moneger, Williams, Konovalov or Kromka disclose etching channels in nanocrystalline diamond and therefore would not be consulted by the ordinary artisan. The examiner disagrees and notes the Chen reference disclose the etching the channels through the nanocrystalline diamond and each of Liu, Moneger, Williams, Konovalov or Kromka discloses deposition of nanocrystalline diamond. Declarant does not provide any factual evidence, other than opinion, that the disclosures of nanocrystalline diamond formation techniques would not inoperable.
Declarant argues the Liu is not useful in formation of a device that would be later etched, but has supplied no factual evidence to support this broad assertion.
Declarant’s arguments related to Chen’s pressure are noted, specifically argue that the delivery of deposition gas at high pressure; however, Chen discloses the processing chamber is at a pressure in the range as claimed (see e.g. 0053) and thus the Declarant’s reliance on the pressure difference appears misplaced.
The Declarant’s statements against the individual references are noted and their apparent deficiencies. The examiner notes that the prima facie case of obviousness is based on the collective teaching of the references and not that the single reference disclose or makes obviousness the claims.
Declarant argues that Konovalov is directed to nanostructured diamond films which is distinctly different that nanocrystalline diamond films, citing 0090 and 0153 to support the position. The examiner reviewed the cited paragraphs and 0090 discloses “the transition from micro- to nanocrystalline diamond film can be observed” and 0153 discloses “formation of smooth nanocrystalline diamond films.” In view of the explicit disclose of Konovalov that references forming nanocrystalline diamond films, the Declarant’s position is unclear and not supported by factual evidence.
Declarant’s opinion that the person ordinary skill in the art would not combine the parameters as claimed are noted but unpersuasive for the reasons set forth above as well as finding that the Declarant is deemed an interested party and the minimal factual evidence that supports the assertions.
Response to Arguments
Applicant's arguments filed 8/14/2025 have been fully considered but they are not persuasive. Examiner notes the applicant’s remarks mirror the statements of the Declarant and therefore the examiner incorporates herein by reference above discussions.
Applicant’s arguments with respect to the replacement of amorphous carbon with NCD films is noted; however, unpersuasive as Chen discloses NCD hardmask for etching channels in the formation of the NAND device.
Applicant’s argue that the claims require both a high Young’s modulus and low roughness along with high etch selectivity. Here, this position is addressed above. Additionally, it is unclear if the applicants are indicating that the combination of these features is an unexpected results or unpredictable. Examiner notes that there is insufficient evidence on the record to support a position that the claimed properties are unexpected commensurate in scope with the claims as drafted.
The applicant argues that the examiner has not recognized that the claimed invention is based on a combination of process parameters. The examiner notes that the full breadth of the claims as drafted and notes the process parameters embodied by the claims as drafted. The examiner has noted that the applicant’s process parameters are specifically taught by the prior art reference to have a direct effect on the deposition and properties of the film and therefore one of ordinary skill in the art would have found it obvious to have adjusted the claimed process parameters through routine experimentation. The applicant’s appear to be arguing that their combination of variables offers unexpected or unpredictable results; however, the examiner notes that such is not explicitly argued nor is such supported by a commensurate showing of factual evidence.
Applicants’ arguments relative to the RMS and Young’s modulus combination is noted, but unpersuasive. Chen discloses individual NCD layers and stacking thin NCD layers to form a thicker layer for etching a NAND channel (0058) and Williams discloses the roughness less than 10 nm rms and Young’s modulus within the range as claimed for thin NCD layers and therefore the combination of roughness and Young’s modulus as claimed would have been obvious as predictable in view of the explicit disclosure of Williams and achieving such at the claimed thickness would have been obvious in view of Chen, which deposit a stack of individual NCD layers to grow a thick NCD hardmask.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 7, 10, 11, 14-16, 21-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent Application Publication 20160064500 by Chen et al. with Liu et al (Growth of micro- and nanocrystalline dual layer composite diamond films by microwave plasma CVD: Influence of CO2 concentration on growth of nano-layer. Journal of Crystal Growth 410 (2015) 30-34), Moneger et al. (Deposition of nanocrystalline diamond in pulsed Ar/H2/CH4 microwave discharges. Diamond & related Materials 16 2007, 1295-1299.), Williams et al. (High Young’s Modulus in ultra thin nanocrystalline diamond) taken collectively with US Patent Application Publication 20100209665 by Konovalov et al. and Kromka (Linear antenna microwave plasma CVD deposition of diamond films over large areas).
Chen discloses a NCD diamond layer as a hardmask for a 3D vertical NAND structure (abstract, title, Figure 2, 3 and accompanying text) including forming a semiconductor device by etching the NCD hard ask to form channels through the NCD layer that has a thickness greater than 250 nm as claimed (0010, 0033-0034, 0058) and discloses the NCD diamond layer is deposited by plasma deposition; however, fails to disclose the particulars of the claim deposition.
However, Liu discloses a method of depositing a diamond layer on a substrate, the method comprising: generating a microwave plasma in a gas mixture in a substrate processing chamber, the gas mixture comprising a first gas comprising H2, a second gas comprising CO2, a third gas selected from the group consisting of CH4 and a fourth gas comprising inert gas (Argon); and depositing a nanocrystalline diamond layer on the substrate, the nanocrystalline diamond layer having a thickness, a roughness, a hardness, and a modulus (abstract, section 2.2). Liu discloses Argon (Table 1). Liu discloses applying to surface acoustic wave devices and microelectromechanical devices and thus meets the requirement of stacked device layers. The requirement of “hard mask” provides no added method claims and thus this mere designation does not provide any positive recited method steps and is met by the deposition of NCD. In other words, the claims as drafted does not require any differentiation of the NCD that would distinguish a NCD that is a “hard mask” from a NCD that is not a “hard mask.”
Liu generally discloses a microwave plasma and therefore fails to disclose pulsed plasma. However, Monger discloses pulsing plasma for the formation of the NCD films that are high quality and result in more flexibility (introduction) versus that of a continuous MW plasma. Therefore taking the references collectively, it would have been obvious to have modified Liu to use the pulsing plasma with a reasonable expectation of predictable results and to achieve the benefits as outlined by Monger.
Moneger discloses the pulse repetition rate directly affects the grain size and thickness (Figure 2-3) and discloses pulsing at 50% duty cycle (% of peak power) and frequency within the range as claimed (Experimental) and therefore taking the references collectively using the pulse repetition rate and duty cycle as set forth by Moneger would have led to predictable results. At the very least, the prior art of Moneger discloses the result effective nature of the pulse frequency and therefore determination of the optimum value for the pulse frequency through routine experimentation would have been obvious.
As for the roughness and Young’s modulus as claimed, the examiner cites here Williams which discloses adjusting the process parameters to achieve a Young Modulus and roughness within the range as claimed (Section 3.1 as it relates to RMS, stating “5 nm r.m.s.” and “around 9 nm r.m.s. and Youngs Modulus at Figure 5) by adjusting the growth parameters, including specifically the methane concentration. Therefore, taking the references collectively it would have been obvious to one of ordinary skill in the art at the time of the invention to have provided the RMS and Youngs Modulus as claimed as such are known variables in the diamond layer that are tunable and one would desire to achieve the claimed roughness and Young Modulus based on the explicit teachings of Williams.
The cited prior art discloses all that is taught above and discloses the varying the amount of the first through fourth gases (see Table 1 of Liu); however, fails to disclose the claimed amounts. However, Konovalov also discloses the formation of smooth diamond using microwave plasma (0073) and discloses supplying noble gases (including argon), hydrogen and carbon precursors (0041-0058) and discloses adjusting the volume percentage that overlaps the claimed ranges (0043, 0047, 0056) and therefore adjusting the amount of hydrogen, argon and carbon precursors to be within the range as claimed would have been obvious as predictable. Additionally, In the case where the claimed ranges “overlap or lie” inside ranges disclosed by prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257 191 USPQ 90. See MPEP 2144.05.
Konovalov discloses an RMS that is 5 nm to 10 nm (overlapping the claimed range) and therefore makes obvious the claimed range. Additionally, Liu discloses a smooth film and Konovalov discloses adjusting the noble gas percentage to achieve the desired RMS (see e.g. Figure 2 and accompanying text) and therefore taking the references collectively it would have been obvious to provide the desired RMS to achieve ultra smooth nanocrystalline diamond.
The cited prior art discloses pulsing microwave power at a peak power; however fails to explicitly disclose the claimed peak power. However, Kromka, also discloses pulsing the microwave power for diamond deposition using CVD precursor gases and disclose a peak power of 4.4 kW working at a pulse frequency up to 500 HZ (see section 2) and therefore using this peak power for the generation of the pulsed microwave plasma for the formation of the diamond on the substrate.
As for the pressure, Kromka discloses pressure that overlaps and thus makes obvious the claimed range (Section 3) and using such would have been obvious as predictable. Additionally, in the case where the claimed ranges “overlap or lie” inside ranges disclosed by prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257 191 USPQ 90. See MPEP 2144.05. At the very least, Kromka discloses the gas pressure is a result effective variable, directly affecting the deposition and it would have been obvious to one of ordinary skill in the art at the time of the invention to have determined the optimum pressure through routine experimentation.
Therefore, it would have been obvious to have modified Chen to deposit the NCD as outlined by Liu et al, Moneger, Williams, Konovalov et al. and Kromka for the reasons set forth above as Chen discloses the NCD diamond via plasma deposition and Liu et al, Moneger, Williams, Konovalov et al. and Kromka makes obvious the claimed NCD deposition technique.
Claim 7: Kromka, also discloses pulsing the microwave power for diamond deposition using CVD precursor gases and disclose a peak power of 4.4 kW working at a pulse frequency up to 500 HZ (see section 2) and therefore using this peak power for the generation of the pulsed microwave plasma for the formation of the diamond on the substrate. The ranges of the prior art close to or overlap those as claimed and thus are obvious.
Claims 10-11: Kromka discloses a temperature that overlaps the claimed range (up to 800C in Experiment would encompass the claims as drafted due to the thermal transfer of the substrate). In the case where the claimed ranges “overlap or lie” inside ranges disclosed by prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257 191 USPQ 90. See MPEP 2144.05. Additionally, the temperature would have been recognized as a result effective variable, directly affecting the deposition and determination of the appropriate temperature of the gas mixture would have been obvious to one of ordinary skill in the art.
Claim 14: Liu discloses the nanocrystalline diamond layer comprises a single layer (see Figure 2). As for the “without forming an underlying nanocrystalline diamond hard mask layer” such is taught by Liu at Figure 2. Additionally, the layer of NCD hard mask formed on the surface would not include any underlying NCD. See e.g. Chen which discloses the nanocrystalline diamond hardmask is deposited to a thickness onto the NAND structure. The scope of the nanocrystalline diamond hardmask layer as claimed encompasses that as taught by Chen, i.e. hardmask inclusive of multiple nanocrystalline diamond hardmask layers.
Claims 15-16: The cited prior art discloses or makes obvious these claims for the reasons set forth above. As for the “surface of the substrate does not include a nanocrystalline diamond layer under the nanocrystalline diamond layer formed using the microwave plasma” such is taught by Liu at Figure 2. See e.g. Chen which discloses the nanocrystalline diamond hardmask is deposited to a thickness onto the NAND structure. The scope of the nanocrystalline diamond hardmask as claimed encompasses that as taught by Chen, i.e. hardmask inclusive of multiple nanocrystalline diamond hardmask layers.
Claim 21: The claims are a physical property of the deposited film and therefore a mere recognition of a latent property of the film. As such, since the prior art disclose and/or makes obvious the specific features of the method claims as drafted, the prior art will necessarily have the claimed compressive stress, unless the applicant is performing specific process steps or using specific parameters that are neither claimed nor disclosed as being required to achieve the claimed results.
Claim 22: Chen discloses forming a channel through the NCD diamond mask layer and the plurality of stacked device layers by etching and the NCD diamond has a high etch selectivity with respect to the stack layers (Figure 2, 3 and accompanying text, see Table 1).
Claim 23: Chen disclose the NAND structure (abstract, Figure 2).
Claims 24-26: Chen disclose the plurality of stacked device layers comprise alternating silicon oxide and silicon nitride layers (0031).
Claims 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chen with Liu , Moneger, Williams and Konovalov and Kromka as applied above to claim 1 and further with US Patent Application Publication 20170271132 by Grotjohn et al.
While the examiner maintains the obviousness of the claimed power, the examiner cites here Grotjohn, also in the art of microwave plasma for deposition of diamond (0085) and discloses powers include 1KW to 10KW (0086) or 5KW to 10KW depending on the desired frequency and plasma chamber and therefore one of ordinary skill in the art would have found it obvious to have selected the optimum power to reap the benefits of microwave plasma deposition of diamond as the claimed powers are within those powers that are well known to one of ordinary skill in the art at the time of the invention.
Claims 10-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chen with Liu, Moneger, Williams and Konovalov and Kromka as applied above to claim 1 and further with US Patent 5071677 by Patterson et al.
While the examiner maintains that gas mixture will be at the claimed temperature due to the thermal transfer of the substrate at said temperature, the examiner cites here Patterson which discloses a diamond CVD deposition and discloses the gases at a temperature from 400C to 920C and/or 250C to 700C (see e.g. claim 38), each of which fully encompasses the claims as drafted and therefore using such temperatures would have been obvious as predictable for the formation of a diamond layer.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID P TUROCY whose telephone number is (571)272-2940. The examiner can normally be reached Mon, Tues, Thurs, and Friday, 7:00 a.m. to 5:30 p.m.
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/DAVID P TUROCY/Primary Examiner, Art Unit 1718