nitride films, and the 15 % decrease in resistivity for the metal nitride sample
film C5 plasma treated using a power of 100 watts and without substrate
biasing, one of ordinary skill in the art would be able to practice a method of
post-treating a metal nitride layer with a hydrogen gas plasma to reduce the
carbon concentration and decrease the resistivity of such layer, as required by
Leung claims 13, 19, 20 and 26.
LX 2021, pp. 4-6, ¶ 11.
We do not agree that the record establishes that the 143 Specification describes a “more than
negligible improvement” or even any improvement at all over the control film. Other “control” films
said to have been deposited under the same conditions (Application 09/128,143, Specification, p. 10,
ll. 15-16) were reported as having an average resistivity of 11,360 :ohm-cm (Application 09/128,143,
Specification, p. 9, ll. 21-22). Thus, the control samples reported in the 143 Specification which were
said to have been made by identical processes show substantial variation in resistivity between around
11,000 and 16,000 :ohm-cm. The resistivity reported for Example C5 is within this range at 13,500.
Thus, it is not apparent that the resistivity decrease asserted for Example C5 resulted from the pre- and
post-treatment with a hydrogen plasma rather than the normal sample to sample variation in resistivity.
We do not credit Dr. Chang’s testimony that Example C5 shows that an unbiased plasma treatment
results in a 15% reduction in resistivity. Dr. Chang did not account for the resistivities of the other
control samples said to have been made by the same process.
In any event, even if the hydrogen plasma treatment resulted in an actual reduction in
resistivity, no information is provided as to any reduction in the carbon content resulting from the
plasma-only treatment. Indeed, the 143 Specification states that the treatments did not effect carbon
content. Application 09/128,143, Specification, p. 14, ll. 10-12. Nor does the 143 Specification
describe the effect of the hydrogen plasma treatment on stability, one of the stated goals of the
invention.
Leung argues that the fact situation is controlled by In re Brower, 433 F.2d 813, 167 USPQ
684 (CCPA 1970). Paper 104, pp. 11-13. That case is inapposite with respect to the written
description issue. The issue in Brower was whether the earlier application was an enabling disclosure
of the invention claimed in the later application. In reversing the rejection the court stated:
Considering the disclosure appellants’ parent application in this light, we find
that it contains an enabling disclosure of the invention now claimed.
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