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 .
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 .
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-4, 6-12, 14-15, 17-19 and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Holber et al., (USPGPub 2016/0340798) in view of Fink et al. (USPGPub 2004/0084153).
Regarding claim 1, Holber teaches a plasma deposition chamber (abstract) configured to be attached to a vacuum pump [0042] for the formation of diamond materials [0020] comprising a substrate holder on top of a cooling stage [0082] further comprising a plenum having one or more portions [0081] , a gas delivery system [0081], a process monitoring system [0083], a control system [0079] and a plasma generator for generating plasma for a plasma CVD process [0026-0029] and means for controlling the temperature and gas pressure of the plenum [0082]. Holber fails to teach the presence of a gas seal that limits the flow of gas between the plenum and process chamber. However, Fink shows that it is well known to provide “appropriate seals” for “plenum cooling plates” [0031] in the production of plasma for substrate treatment purposes [0005]. Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to use the to include the seals of Fink in the plasma generation system of Holber including plenum cooling plates as a use of a known seal provision technique applied to similar apparatus in the same way.
Regarding claims 2-3, the teachings of Holber in view of Fink are as shown above. Holber in view of Fink is silent as to the compressibility of the seal provided. However, the seal of Holber is necessarily either compressible or not wherein both types of seals would be expected to function successfully. Therefore, given a limited number of possibilities as described above, both possibilities being reasonably expected to provided predictable and successful results it would have been “obvious to try” for one of ordinary skill in the art before the effective filing date of the claimed invention to use either type of seal in the invention of Holber in view of Fink.
Regarding claim 4, reasonably the prior art must meet the limitations of the current claims. Otherwise it is implied that the thickness of the seal of the prior art provides an undesirable amount of thermal transfer, wherein if this were the case, providing a thickness that provides a desirable amount would be obvious or the prior art invention, being provided in a way presented by the inventors as suitable for its intended purpose (i.e., desirable) already provides all prior art components in a manner that is desired.
Regarding claims 6-7, the teachings of Holber in view of Fink are as shown above. Holber in view of Fink is silent as to the length of the gas seal provided. However, Fink does not mention partial sealing wherein it is reasonably implied that the plenum as described is fully sealed. However, a more accurate description of Fink would describe the level of sealing as being as needed or “appropriate” as cited above. In short, Fink generally describes that the leveling of sealing can be provided in a variety of ways and it is up to the inventor to determine what is the appropriate level, wherein the means of sealing and shape of the seal would reasonably be part of this determination. Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the sealing of Holber in view of Fink to be a partial seal or full seal as a means of providing appropriate sealing, wherein it is implied by Fink that those of ordinary skill in the art are capable of making said determinations. Further all means of providing the seal would reasonably fall under either complete or partial sealing it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide either wherein both would be expected to function and provide predictable results. Further specifically determining the location of seal so long as the seal is intended to provide sealing between the same two particular parts would be obvious because the change in location would not alter the operation of the device and would be considered a mere obvious matter of design choice. See in re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950). See in re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Regarding claim 8, it is reasonably implied that all gas seals provide a desired amount of gas leakage which may be none.
Regarding claim 9, it is reasonably implied that the conductivity of the seal of Holber in view of Fink is provided as desired or otherwise it would be provided in a different manner.
Regarding claims 10-11, Holber further teaches wherein microwave power sources may be used [0027-0030] or RF power sources may be used (abstract).
Regarding claims 12, 15, 17 and 22, the teachings of Holber in view of Fink are as shown above. Holber further teaches measuring the temperature of the workpiece and holder using a temperature sensor as claimed and means to control temperature through the plenum via gas pressure control [0082]. Holber in view of Fink fails to teach wherein this is provided as part of a feedback loop. However, Holber does teach the concept of general of using closed loop feedback systems to control the formation process [0084] but not necessarily between the gas pressure provision means and the temperature sensor. Further it must be noted that if the system of Holber does not already provide control over gas pressure then it is assumed that pressure control must take place manually based on sensed conditions which could reasonably be done automatically. Therefore given that Holber in general understands and provides automation through closed feedback loops in his invention already, means to modify temperature through gas pressure control at the plenum and sensors for sensing temperature as claimed, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention if it was not already done to link these components in a manner that would allow for additional closed feedback operations in the invention of Holber in view of Fink, thereby automating portions of the process of Holber in view of Fink, effectively increasing efficiency.
Regarding claim 14, the plenum of Holbert may reasonably be divided into many arbitrary “portions”.
Regarding claim 18, Holbert generally teaches a desire for a “uniform environment for the deposition” [0078].
Regarding claim 19, Holber further teaches substrate holder dimensions meeting the claim limitations [0088].
Regarding claim 21, Holber implicitly teaches the presence of an exhaust port through the use of a vacuum pump [0056] but fails to teach a plurality of exhaust ports. However, this would read upon a mere duplication of the exhaust ports of Holber in view of Fink wherein the Court has long held that mere duplication of parts of a prior art part has no patentable significance unless a new and unexpected result is produced. See in re reHarza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960).
Regarding claim 23, Holber further teaches wherein the substrate holders may be made from refractory metals [0009].
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Holber et al., (USPGPub 2016/0340798) in view of Fink et al. (USPGPub 2004/0084153) as applied to claims 1-4, 6-12, 14-15, 17-19 and 21-23 above and further in view of Jurgens (USPGPub 2015/0203669).
Regarding claim 5, the teachings of Holber in view of Fink are as shown above. Holber in view of Fink fails to teach wherein the seal is a metallic core seal. However, Jurgens teaches that it is known to provide gas pressure seals a metallic core seals (see abstract and [0015]). Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to use the metallic core seal of Jurgens as the seal of Holber in view of Fink as a substitution of one known seal for another for gas sealing purposes wherein the substitution of one seals for another would be predictable based upon the suitability of said metallic core seals by Jurgens.
Claim(s) 13, 16 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Holber et al., (USPGPub 2016/0340798) in view of Fink et al. (USPGPub 2004/0084153) as applied to claims 1-4, 6-12, 14-19 and 21-23 above and further in view of Johnson (USPGPub 2003/00567716).
Regarding claims 13, 16 and 24, the teachings of Holber in view of Fink are as shown above. Holber in view of Fink fails to teach wherein the substrate holder comprises a “clamping mechanism”. However, Johnson teaches that plasma deposition substrate holders may comprise a “means for clamping the substrate to the substrate holder” [0035]. Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide the plasma deposition substrate holder of Holber in view of Fink with a substrate clamping mechanism as provided by Johnson as an application of a known substrate clamping technique to a known plasma deposition substrate holder ready for improvement wherein the results of the modification would be predictable based on the shown suitability of such modifications to similarly employed substrate holders by Johnson.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Holber et al., (USPGPub 2016/0340798) in view of Fink et al. (USPGPub 2004/0084153) as applied to claims 1-4, 6-12, 14-19 and 21-23 above and further in view of Heinecke et al., (GB2240114).
Regarding claim 20, the teachings of Holber in view of Fink are as shown above. Holber in view of Fink fails to teach wherein a throttle valve is employed. However, Heinecke teaches that it is known to provide throttle valves (see pg. 2 last paragraph) to control the evacuation rate of gas from a chamber used for the formation of diamond films (see abstract) to thereby control the pressure within the chamber. Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide the diamond formation apparatus of Holber in view of Fink with the throttle valve of Heinecke in order to gain said control over the evacuation rate of the chamber of Holber in view of Fink thereby controlling the pressure inside the chamber as already desired by Holber as described above.
Response to Arguments
The applicant argues that the plasma generators of Holber and Fink are different types of plasma generators and therefore the references cannot be combined. Seemingly the applicant is arguing that the references are non-analogous, possibly. However, first, the MPEP clearly states that when more than one prior art reference is used as the basis of an obviousness rejection, it is not required that the references be analogous art to each other. See Sanofi-Aventis Deutschland GMbH v. Mylan Pharms. Inc., 66 F.4th 1373, 1380, 2023 USPQ2d 552 (Fed. Cir. 2023) and Corephotonics, Ltd. v. Apple Inc., 84 F.4th 990, 1007, 2023 USPQ2d 1202 (Fed. Cir. 2023). It is instead required that the prior art references be analogous to the current application. In this case, both references in question are specifically rated to plasma deposition process and chambers used therein capable of producing and using plasma. As such, the references should reasonably be considered analogous art.
Further the applicant makes a conclusory statement that the Holber and Fink are not combinable seemingly because each device may contain components that the other device does not. However, the examiner did not propose that all of the components of one invention be provided in another. The applicant has not provided a reasoned arguments as to why seals used in Fink would not be combinable with the plenum of Holber. This same type of argument is also employed against Fink wherein it is stated that the seals of Fink cannot be used in conjunction with the plenum of Holber without incorporating the resonator cavity of Fink. However, this was not argued by the examiner. It is not apparent why a resonator cavity is required for the use of a plenum seal, wherein a plenum is simply an air supply. Why can seals like those of Fink not be used to seal air supplies like those of Holber?
Further the applicant argues that the plenum of Fink does not relate to controlling temperature. However, the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
All other arguments are generally based upon the concept that no secondary references cure the deficiencies of the references listed above wherein it remains the position of the examiner that the applied references above are not deficient as argued.
Conclusion
THIS ACTION IS MADE FINAL. 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 ANDREW J BOWMAN whose telephone number is (571)270-5342. The examiner can normally be reached Mon-Sat 5:00AM-11:00AM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dah-Wei Yuan can be reached at 571-272-1295. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW J BOWMAN/Examiner, Art Unit 1717
/Dah-Wei D. Yuan/Supervisory Patent Examiner, Art Unit 1717