Appeal No. 2002-1640
Application No. 09/296,806
Ex parte Masham, 2 USPQ 1647, 1648 (Bd. Pat. App. & Int. 1987).
Also see In re Yanush, 477 F.2d 958, 959, 177 USPQ 705, 706
(CCPA 1973); In re Finsterwalder, 436 F.2d 1028, 1032, 168 USPQ
530, 534 (CCPA 1971); In re Casey, 370 F.2d 576, 580, 152 USPQ
235, 238 (CCPA 1967); and In re Otto, 312 F.2d 937, 939,
136 USPQ 458, 459 (CCPA 1963).
However, absent structure capable of performing the
functional limitations of the means being claimed, the prior art
cannot meet the claims. In re Mott, 557 F.2d 266, 269, 194 USPQ
305, 307 (CCPA 1977). Here, the examiner has not shown that
Johnsgard’s apparatus is capable of performing thin film growth
processing. In this context, the examiner’s rejection does not
explain how to modify the apparatus of Johnsgard by the
teachings of Tietz or Askeland to arrive at appellants’ claimed
apparatus for thin film growth. (Paper No. 11, pages 2-6, answer
pages 3-7).2 On this issue, beginning on page 11 of the brief,
appellants state that the examiner does not explain how he would
combine the thermal processor of Johnsgard with the CVD device
2 We note that on pages 3-4 of Paper No. 11, the examiner’s reasons for
combining Johnsgard, Tietz, and Askeland are “to yield an apparatus as in
Claim 1 because process vessels, susceptors (i.e. pedestals), lift pins, and
substrate holding mechanisms were known in the art and their combination
would have been anticipated to produce a functioning process apparatus. In
addition, the use of these components interchangeably in their known
capacities would have had, from the skilled artisan’s view point, reasonable
expectation of success. Motivation of using the known ceramic lift pins in
Johnsgard et al.’s apparatus is given in that these pins were already known
to have utility in this capacity (i.e. they work).” On page 4 of Paper No.
11, the examiner also states “optimization of the inherent property of
thermal conductivity would have also been obvious since Johnsgard et al.
describes the importance of heating uniformity of the susceptor and by
extension the wafer to be treated.” On page 4 of the answer, the examiner
also states that just because appellants do not agree with the examiner’s
presented motivation for the combination of references, this does not mean
that the presented motivation can be ignored. The examiner states that the
materials used to form the apparatus were known in the art, and that the
thermal conductivity of ceramics was a known important property. All of
these reasons provided by the examiner do not explain how the combination
yields an apparatus for thin film growth.
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