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 .
DETAILED ACTION
Response to Arguments
Applicant’s arguments, see p. 1, par. 5, filed 3/12/2025, with respect to claim 1 have been fully considered and are persuasive. The rejection of claim 1 has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Lee et al. (US 2002/0088545) further in view of Kajiwara (US 9,790,596) and Oda et al. (US 4,264,541).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 1 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, claim 1 states “the distance of the first region A from the end face of the outlet to the depth side is within 0.5 mm, and the second region B is on the further depth side than the first region A, and the distance of the second region B from the end face of the outlet to the depth side is within 3.0 mm” line 7-10. Applicant refers to two distinct depth sides, as underlined. One located within 0.5mm from face of outlet, and then refers to the same depth side as being within 3.0 mm from face of outlet. Likely, applicant should consider amending the claim to read: “wherein the distance of the first region A from the end face of the outlet to the depth side is within 0.5 mm, and the second region B is on the further depth side than the first region A, and the distance of the second region B from the end face of the outlet to the further depth side is within 3.0 mm”. However, applicant is encouraged to clarify.
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 (i.e., changing from AIA to pre-AIA ) 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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US 2002/0088545) in view of Kajiwara (US 9,790,596) and Oda et al. (US 4,264,541).
Regarding claim 1, Lee et al. teaches a columnar gas nozzle (gas injector, fig. 4), for use in an apparatus utilizing plasma processes (plasma etching process, par. 0016), made of ceramics (ceramic material, par. 0037) having at least one through-hole through which gas flows (gas injecting section 430, fig. 4).
Lee et al. fails to disclose the use of sintered ceramics.
However, Kajiwara teaches use of sintered ceramics (col. 2, line 61).
Therefore, it would have been obvious for one skilled in the art prior to the effective filing date of the present application to have the motivation to modify the gas injector of Lee et al. by applying a known technique of sintering to the ceramic material as taught by Kajiwara for the benefit of “enhancing plasma resistance” (col. 3, line 19).
Lee et al. modified by Kajiwara discloses an entire surface of an inner surface of the through-hole (Kajiwara- inner wall of the first hole 18, col. 4, line 48-50) and an end face (Kajiwara describes the entire molded body 26 is fired and therefore the end face 13 is a fired surface as well, col. 7, line 25-26) on which an outlet of the through-hole is provided (end face 13 is where the outlet of first hole 18 is located, fig. 2(b)) are both fired surfaces (Kajiwara- the inner wall of the first hole 18 includes a sintered surface of the ceramic sintered body. The sintered surface is a fired surface, col. 4, line 48-50 and Kajiwara describes the entire molded body 26 is fired. Therefore the end face 13 is a fired surface as well, col. 7, line 25-26).
Therefore, it would have been obvious for one skilled in the art prior to the effective filing date of the present application to have to the motivation to modify the inner surface of the through-hole and an end face by fired the surfaces as taught by Kajiwara for the benefit of a “high plasma resistance” (col. 3, line 5-6).
Lee et al. discloses the inner surface (annotated fig. 5) of the through-hole (annotated fig. 5) includes a first region A (second cylindrical portion 420, fig. 5) as an outlet neighboring region (annotated fig. 5) and a second region B (first cylindrical portion 410, fig. 5) being located at the depth side from the first region A (annotated fig. 5).
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Lee et al. modified by Kajiwara teaches the second region B (first cylindrical portion 410, fig. 5) is on the further depth side than the first region A (second cylindrical portion 420, fig. 5).
Lee et al. modified by Kajiwara fails to disclose the distance of the first region A from the end face of the outlet to the depth side is within 0.5 mm, and the distance of the second region B from the end face of the outlet to the depth side is within 3.0 mm.
Lee et al. discloses the claimed invention except for “the distance of the first region A from the end face of the outlet to the depth side is within 0.5 mm, and the distance of the second region B from the end face of the outlet to the depth side is within 3.0 mm”. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include “the distance of the first region A from the end face of the outlet to the depth side is within 0.5 mm, and the distance of the second region B from the end face of the outlet to the depth side is within 3.0 mm”, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. See MPEP 2144.05.II. The Examiner notes that a particular parameter must be recognized as a result effective variable, in this case, that parameter is the distance of the first region A from the end face of the outlet to the depth side and the distance of the second region B from the end face of the outlet to the depth side which achieves the recognized result of providing a gas injector that will not begin to disintegrate during use, i.e. that will not produce particles (Lee – paragraph 0016), therefore, one of ordinary skill in the art at the filing date of the invention would have found the claimed range through routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). See also In re Boesch, 617 F.2d 272, USPQ 215 (CCPA 1980).
Furthermore, since applicants have not disclosed that these modifications solve any stated problem or are for any particular purpose and it appears that the device would perform equally well with either design, these modifications are a matter of design choice. Absent a teaching as to criticality of “the distance of the first region A from the end face of the outlet to the depth side is within 0.5 mm, and the distance of the second region B from the end face of the outlet to the depth side is within 3.0 mm”, this particular arrangement is deemed to have been known by those skilled in the art since the instant specification and evidence of record fail to attribute any significance (novel or unexpected results) to a particular arrangement. In re Kuhle, 526 F.2d 553,555,188 USPQ 7, 9 (CCPA 1975). MPEP 2144.05.
Lee et al. modified by Kajiwara fails to disclose an average crystal grain size at the first region A is smaller than an average crystal grain size at the second region B.
However, Oda et al. discloses an average crystal grain size at the first region A is smaller than an average crystal grain size at the second region B (col. 3, lines 13-18).
Therefore, it would have been obvious for one skilled in the art prior to the effective filing date of the present invention to have the motivation to modify the gas nozzle of Lee et al. modified by Kajiwara by making the “average crystal grain size at the first region A is smaller than an average crystal grain size at the second region B” as taught by Oda et al. for the benefit of “the mechanical strength and the thermal shock resistance of the end portions are made higher than those in the middle portion” (abs.) and for reduction of “cracks by a thermal shock” (abs.).
Further no criticality is apparent for the claimed limitation. According to applicants’ disclosure: “Though the reason has not been clarified clearly at present, it can be estimated that the small average crystal grain size in region A which is more prone to be strongly exposed to plasma increases the strength of the surface, and thus, the surface withstands the physical impacts of radicals when exposed to the plasma, and consequently, the generation of particles is suppressed” (par. 0023 of applicants’ specification).
Lee et al. modified by Kajiwara and Oda et al. fails to disclose the average crystal grain size at the second region B is not more than 1.2 times the average crystal grain size at the first region A.
However, Oda et al. teaches the average crystal grain size at the end portions (first region A) to be 1-20 µm and at the middle portion (second region B) to be 10-200 µm wherein the average crystal grain size of the end portions of a tube is substantially smaller than that of the middle portions of the same tube (col. 3, lines 13-18). Furthermore, the restriction that the “second region B is not more than 1.2 times the average crystal grain size at the first region A” falls within the ref. disclosed values.
Lee et al. discloses the claimed invention with the exception of specific dimensions for the (second region B average crystal grain size). It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to utilize (1.2 times the average crystal grain size of first region A) for the (second region B) since our reviewing courts have held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Furthermore, since applicants have not disclosed that these modifications solve any stated problem or are for any particular purpose and it appears that the device would perform equally well with either designs, these modifications are a matter of design choice. Absent a teaching as to criticality of “the second region B is not more than 1.2 times the average crystal grain size at the first region A”, this particular arrangement is deemed to have been known by those skilled in the art since the instant specification and evidence of record fail to attribute any significance (novel or unexpected results) to a particular arrangement. In re Kuhle, 526 F.2d 553,555,188 USPQ 7, 9 (CCPA 1975). MPEP 2144.05.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to "Kyle Beers" whose telephone number is (571) 270-0460. The examiner can normally be reached on Monday thru Friday 8:00-4:30 PST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Arthur Hall can be reached on (571) 270-1814 The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KYLE GARRETT BEERS/Examiner, Art Unit 3752
/STEVEN M CERNOCH/Primary Examiner, Art Unit 3752
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