Ex Parte DEN BOEF et al

Patent Trial and Appeal Board

Sep 20, 2018

14264547 (P.T.A.B. Sep. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/264,547 04/29/2014 Arie Jeffrey Maria DEN BOEF
26111 7590 09/24/2018
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK A VENUE, N.W.
WASHINGTON, DC 20005
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
1857.7930005 7507
EXAMINER
COOK, JONATHON
ART UNIT PAPER NUMBER
2886
NOTIFICATION DATE DELIVERY MODE
09/24/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
e-office@stemekessler.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARIE JEFFREY MARIA DEN BOEF, ARNO JAN BLEEKER,
YOURI JOHANNES LAURENTIUS MARIA VAN DOMMELEN,
MIRCEA DUSA, ANTOINE GASTON MARIE KIERS,
PAUL FRANK LUEHRMANN,
HENRICUS PETRUS MARIA PELLEMANS,
MAURITS VAN DER SCHAAR, CEDRIC DESIRE GROUWSTRA, and
MARKUS GERARDUS MARTINUS VAN KRAAIJ
Appeal2018-000663
Application 14/264,54 7
Technology Center 2800
Before MARK NAGUMO, JAMES C. HOUSEL, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL 1
1 Our decision refers to the Specification (Spec.) filed April 29, 2014, the
Examiner's Final Office Action (Final Act.) dated September 14, 2016,
Appellants' Appeal Brief (Appeal Br.) filed May 17, 2017, the Examiner's
Answer (Ans.) dated September 26, 2017, and Appellants' Reply Brief
(Reply Br.) filed October 26, 201 7.
Appeal2018-000663
Application 14/264,547
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's decision finally rejecting claims 1, 3-5, and 7-11. 2 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We REVERSE.
STATEMENT OF THE CASE
The invention relates to methods of inspection usable in the
manufacture of devices using lithographic techniques (Spec. ,r 2). The
Inventors disclose that scatterometry is one example of an optical metro logy
technique for in-line measurements for detecting and measuring errors in a
lithographic apparatus (id. ,r,r 4--5). The Inventors further disclose the
invention encompasses measuring overlay through the measurement of
asymmetry of scattered light (id. ,r 11 ).
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal. The limitation at issue
is italicized.
1. A method, comprising:
directing a radiation beam from a radiation source
toward a pattern formed on a substrate;
detecting, in a pupil plane of a lens, an angle-
resolved spectrum of the radiation beam reflected from the
pattern; and
measuring asymmetries between intensities of
corresponding diffraction orders diffracted from the
pattern in the reflected angle-resolved spectrum to
measure a property of the substrate.
2 Appellant is the Applicant, ASML NETHERLANDS B.V., which is
identified in the Appeal Brief as the real party in interest (Appeal Br. 3).
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Appeal2018-000663
Application 14/264,547
REJECTIONS
The Examiner maintains, and Appellants request our review of, the
following grounds of rejection:
1. Claims 1, 3, 5, and 7 under 35 U.S.C. § I02(e) as anticipated by
Davidson; 3
2. Claim 4 under 35 U.S.C. § I03(a) as unpatentable over
Davidson;
Claims 8, 9, and 11 under 35 U.S.C. § I03(a) as unpatentable over
Davidson in view ofWatson; 4 and
3. Claim 10 under 35 U.S.C. § I03(a) as unpatentable over
Davidson in view of Sandusky. 5
ANALYSIS
The dispositive issue before us in this appeal is whether Appellant
has identified reversible error in the Examiner's finding that Davidson, by
measuring the intensities of corresponding diffraction orders diffracted from
a pattern formed on a substrate in an angle-resolved spectrum, inherently
measures asymmetries between those intensities. For the reasons given in
the Appeal and Reply Briefs, we answer this question in the affirmative.
Therefore, we do not sustain the Examiner's anticipation rejection based on
Davidson. Nor do we sustain the Examiner's obviousness rejections based
on Davidson because the Examiner fails to remedy this deficiency when
concluding that claimed invention would have been obvious.
3 Davidson, US 2005/0046855 Al, published March 3, 2005.
4 Watson et al., US 6,177,994 Bl, issued January 23, 2001.
5 Sandusky, US 2002/0039184 Al, published April 4, 2002.
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Application 14/264,547
Rather than reiterate all the Examiner's findings and response,
Appellant's arguments and rebuttal, we direct attention to the Final Office
Action, the Appeal Brief, the Answer, and the Reply Brief. Instead, we
focus solely on the dispositive issue above. The Examiner finds that because
Davidson teaches a method substantially as recited in claim 1, wherein the
intensities of corresponding diffraction orders diffracted from a pattern
formed on a substrate in an angle-resolved spectrum are measured, Davidson
inherently measures asymmetries between those intensities (Final Act. 4;
Ans. 3--4). In particular, the Examiner indicates that the limitation in
question, "measuring asymmetries between intensities," when interpreted
under the broadest reasonable interpretation standard, means that the
measurement of the asymmetries occurs at the detector where the intensities
are measured (Ans. 3).
Apparently, the Examiner's position is that because Davidson
measures the intensities at the detector, once measured, one is inherently in
possession of the difference between those intensities, if any, between the
diffraction orders, and thus one has measured that difference (Ans. 3). As
such, the Examiner determines that "measuring asymmetries between
intensities" is inherent in the measurement of intensities. In this regard, the
Examiner finds that "[i]f one were to take the data from the measurements
and then process it, one could then determine the asymmetries between
intensities of the diffraction orders" (id. at 4 ). The Examiner determines,
however, that claim 1 does not require that processing (id.).
On the other hand, Appellant argues that the Examiner's construction
of this limitation ignores the requirement that it is the asymmetries between
the intensities of corresponding diffraction orders that is measured (Appeal
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Application 14/264,547
Br. 6-7). In doing so, Appellant contends that the Examiner improperly
applied the broadest reasonable interpretation standard by reading out the
language, "asymmetries between" (Reply Br. 3). In addition, Appellant
argues that even if Davidson samples intensity of the light for each channel
and provides a Fourier transform for each channel, Davidson does not
disclose or suggest measuring asymmetries between intensities of
corresponding diffraction orders diffracted from the pattern (Appeal Br. 9).
In this regard, Appellant contends that the Examiner fails to establish that
Davidson necessarily functions to measure asymmetries between intensities
of corresponding diffraction orders merely because the intensities are
detected (Reply Br. 4 ). Appellant urges that the Examiner's statement that
"[i]f one were to take the data from the measurements and then process it,
one could the determine the asymmetries between intensities of the
diffraction orders" actually supports lack of inherency because whether
something could operate as claimed does not establish that it necessarily
does (id. at 4--5 (emphasis added by Appellant)).
Appellant's arguments are persuasive of reversible error. "[A] prior
art reference without express reference to a claim limitation may nonetheless
anticipate by inherency." In re Omeprazole Patent Litigation, 483 F.3d
1364, 1373 (Fed. Cir. 2007). In general, a limitation is inherent "if it is the
'natural result flowing from' the explicit disclosure of the prior art."
Schering Corp. v. Geneva Pharms., 339 F.3d 1373, 1379 (Fed. Cir. 2003)
(quoting Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 970 (Fed. Cir.
2001)). What is required is that the inherent feature inevitably results from
the disclosed steps: "[i]nherency ... may not be established by probabilities
or possibilities." In re Montgomery, 677 F.3d 1375, 1380 (Fed. Cir. 2012).
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Application 14/264,547
"Inherency ... may not be established by probabilities or possibilities. The
mere fact that a certain thing may result from a given set of circumstances is
not sufficient." MEHL/Biophile Int'! Corp. v. Milgraum, 192 F.3d 1362,
1365 (Fed. Cir. 1999) (quoting In re Oelrich, 666 F.2d 578,581 (CCPA
1981)).
Here, the plain language of claim 1 requires that the asymmetries
between intensities of corresponding diffraction orders are measured.
Although neither the Examiner nor Appellant directs attention to Appellant's
Specification, it is fundamental settled law that the broadest reasonable
interpretation is that which is consistent with the specification. In re Baker
Hughes, Inc., 215 F.3d 1297, 1303 (Fed. Cir. 2000) (the PTO cannot adopt a
construction that is "beyond that which was reasonable in light of the totality
of the written description"). The Specification discloses that the
scatterometer may be adapted to measure the overlay of misaligned periodic
structures by measuring asymmetries in the reflected spectrum (Spec. ,r,r 53-
54, 57---66). Therein, the Inventors disclose that the intensities of
corresponding diffraction orders are used to measure the resulting
asymmetries.
Moreover, the Examiner's position of inherency is dependent on a
speculative desire to further process Davidson's measured or detected
intensities, e.g., "if one were to take the data from the measurements and
then process it, one could then determine the asymmetries between
intensities of the diffraction orders." (Ans. 4). This is not the standard for
inherency. Merely providing intensity data is not sufficient to establish that
Davidson necessarily processes that data to produce measured asymmetries
between intensities of corresponding diffraction orders. Because the
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Application 14/264,547
Examiner has not established that Davidson necessarily measures
asymmetries between intensities of corresponding diffraction orders, we
cannot say that Davidson inherently performs this step. Accordingly, we are
compelled to reverse the Examiner's anticipation rejection of claims 1, 3, 5,
and 7 based on Davidson.
Further, because the Examiner does not rely on the additional
secondary teachings or otherwise provide reasoning to remedy this
deficiency when concluding that claimed invention would have been
obvious, we likewise are compelled to reverse the Examiner's obviousness
rejections of claims 4 and 8-11 as well.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Appeal and Reply Briefs, the decision of the Examiner rejecting
claims 1, 3-5, and 7-11 is reversed.
REVERSED
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