Ex Parte Izikson et alDownload PDFPatent Trial and Appeal BoardDec 13, 201613457383 (P.T.A.B. Dec. 13, 2016) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/457,383 04/26/2012 Pavel Izikson 5222-14603/P1743D1 3757 61507 7590 Entropy Matters LLC P.O. Box 2250 NEW YORK, NY 10021 12/13/2016 EXAMINER ZHANG, HAIDONG ART UNIT PAPER NUMBER 2858 MAIL DATE DELIVERY MODE 12/13/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAVEL IZIKSON, JOHN ROBINSON, MIKE ADEL, AMIR WIDMANN, DONGSUB CHOI, and ANAT MARCHELLI Appeal 2015-005970 Application 13/457,383 Technology Center 2800 Before LINDA M. GAUDETTE, JULIA HEANEY, and DEBRA L. DENNETT, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Appellants2 appeal under 35 U.S.C. § 134(a) from a rejection of claims 1—16. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 In this Opinion, we refer to the Specification filed April 26, 2012 (“Spec.”), the Non-Final Action mailed June 18, 2014 (“Non-Final Act.”), the Appeal Brief filed October 29, 2014 (“App. Br.”), the Examiner’s Answer mailed March 26, 2015 (“Ans.”), and the Reply Brief filed May 24, 2015 (“Reply Br.”). 2 Appellants identify KLA-Tencor Corporation as the real party in interest. App. Br. 2. Appeal 2015-005970 Application 13/457,383 The claims are directed to methods for sampling wafers during a measurement process. Claim 1, reproduced below with the disputed claim language highlighted, is illustrative of the claimed subject matter: 1. A method for sampling wafers during a measurement process, comprising: designing a plurality of sampling schemes for the measurement process, wherein the sampling schemes comprise one or more parameters of measurements to be performed on wafers by a measurement tool during the measurement process, and wherein the one or more parameters of the measurements for at least two of the sampling schemes are different and determined prior to use of the sampling schemes; triggering one of the plurality of sampling schemes for the wafers; and activating the triggered sampling scheme such that the measurements are performed on the wafers during the measurement process using the triggered sampling scheme, wherein said designing, said triggering, and said activating are performed using a computer system. App. Br. 11 (Claims App’x). REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Zhang et al. US 2004/0167748 A1 Aug. 26, 2004 (“Zhang”) Suzuki et al. US 2006/0195215 Al Aug. 31, 2006 (“Suzuki”) 2 Appeal 2015-005970 Application 13/457,383 REJECTIONS The claims stand rejected as follows: claims 1—3 and 5—16 under 35 U.S.C. § 102(e) over Suzuki, and claim 4 under 35 U.S.C. § 103(a) over Suzuki in view of Zhang. Non-Final Act. 2. OPINION Rejection of claims as anticipated by Suzuki Claim 1 is the sole independent claim appealed. App. Br. 11—14 (Claims App’x). Appellants do not argue patentability of claims 2, 3, or 5— 16 separately from claim 1, therefore, these dependent claims will stand or fall with claim 1. Appellants separately argue for patentability of claim 4 and we address it separately below. Appellants argue that Suzuki does not anticipate claim 1 because the reference does not teach designing a plurality of sampling schemes for the measurement process, wherein the sampling schemes comprise one or more parameters of measurements to be performed on wafers by a measurement tool during the measurement process, and wherein the one or more parameters of the measurements for at least two of the sampling schemes are different and determined prior to use of the sampling schemes. Id. at 3. The Examiner disagrees with Appellants and finds that Suzuki teaches a precision parameter (wafer alignment precision) which must be set first in order to instruct the measurement tool to perform its corresponding alignment test. Non-Final Act. 3. The Examiner also finds that the sample frequency (wafers/lot) parameter taught by Suzuki “is the number of wafers that is or will be tested by the measurement tool in a lot where the wafers/lot 3 Appeal 2015-005970 Application 13/457,383 must be[] set first so that the measurement tool knows how many wafers will be tested in a lot.” Id. According to the Examiner, during the designing and test developing phase, i.e., before releasing wafers to production testing, Suzuki teaches that precision and sample frequency (wafers/lot) may be adjusted to achieve optimal performance and yield. Id. The Examiner argues that when the final precision and sampling frequency (wafers/lot) parameters in Suzuki are being set in a test program released to production, the measurement tool then loads the test program and performs tests on wafers by using the precision and sampling frequency (wafers/lot) parameters. Id. The Examiner, therefore, finds that Suzuki teaches the claim limitation in dispute. Appellants argue that Suzuki discloses determining sampling schemes that include numbers of wafers in lots to be measured in a process by an overlay inspection apparatus, but the reference does not disclose that the sampling schemes include one or more parameters of the measurements to be performed by the overlay inspection apparatus during the process. App. Br. 3^4. According to Appellants, “[although Suzuki discloses changing one or more parameters of measurements performed by an interferometer,” Suzuki does not “determine the parameters of the measurements performed by the interferometer prior to use of a plurality of sampling schemes.” Id. at 4. Appellants contend that “the methods of Suzuki involve monitoring performance (precision) of an alignment procedure performed by an exposure apparatus, and if the precision of the alignment procedure falls below some predetermined precision, then optimizing one or more parameters used for the alignment procedure such that different parameters are used for the alignment procedure.” Id. Appellants argue that 4 Appeal 2015-005970 Application 13/457,383 in the methods of Suzuki, the different (optimized) parameters used for the alignment procedure are not determined prior to performing the sampling scheme because until monitoring of the parameters has begun and optimization has been performed on the basis of the monitoring results [ ], the methods and systems of Suzuki do not know what the altered parameters will be. In other words, optimization is not performed until after monitoring has begun, and the optimization is based on the results of the monitoring (sampling) and as such cannot be performed prior to monitoring (sampling). Therefore, the results of optimization are not available until after monitoring has begun. Id. (emphasis added). Appellants conclude that “Suzuki teaches and suggests that the process and apparatus are monitored, and if a change is detected then wafer sampling conditions are changed;” “unlike the present claims in which the sampling schemes are determined prior to use of the sampling schemes.” Id. at 5—6. In arguing for allowance of the claims, Appellants also direct us to the prosecution of the parent application, US Application 12/107,346 (now US 8,175,831) {id. at 6), of which the instant application is a divisional application (Spec. 1). Claims in the parent application were rejected under §§102 and 103 over Suzuki and other prior art. See Notice of Allowance in US Application 12/107,346 mailed January 13, 2012 (“Notice of Allowance”). Claims in the parent application were allowed over Suzuki after amendment of the claims to include the limitation “wherein the one or more parameters of the measurements for at least two of the optimal sampling scheme, the enhanced sampling scheme, and the reduced sampling scheme are different and determined prior to use of the dynamic sampling schemes.” App. Br. 6. Appellants argue that the limitation added to the independent claim in the parent application and the limitation added to claim 5 Appeal 2015-005970 Application 13/457,383 1 of the application at issue here are “clearly commensurate with each other in scope.” Id. Appellants submit that the claims of the present application are allowable over Suzuki “for the reasons set forth in the Notice of Allowance issued in the parent application.” Id. at 7. The Notice of Allowance in the parent application states that the amended independent claims “are directed to a sampling system which has three or more predefined and static sampling modes each with predefined and static sampling frequencies and parameters.” Notice of Allowance 3 (emphasis in original). Applicants in the parent application did not respond to the Examiner’s characterization of the claims in the Notice of Allowance. “[A]n Examiner’s Statement of Reasons for Allowance ‘will not necessarily limit a claim.’” Salazar v. Procter & Gamble Go., 414 F.3d 1342, 1345 (Fed. Cir. 2005) (internal quotations omitted). “Consequently, an applicant’s silence regarding statements made by the examiner during prosecution, without more, cannot amount to a ‘clear and unmistakable disavowal’ of claim scope.” Id. (citing 3MInnovative Props. Co. v. Avery Dennison Gorp., 350 F.3d 1365, 1373 (Fed. Cir. 2003) (“Prosecution history . . , cannot be used to limit the scope of a claim unless the applicant took a position before the PTO.”) (emphasis in original)). Whether applicants in the parent application disavowed claim scope is not the issue here. Rather, our interest is in the position adopted by Appellants in the instant case. By arguing that “the claims of the present application are allowable over Suzuki for the reasons set forth in the Notice of Allowance issued in the parent application” (Appeal Brief 7), we find that Appellants unambiguously adopted in this case the Examiner’s reasoning in 6 Appeal 2015-005970 Application 13/457,383 the parent case, and clearly and unmistakably disavowed claim scope beyond sampling schemes having predefined and static sampling modes and predefined and static sampling parameters (see Notice of Allowance), Under a broadest reasonable interpretation, words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification and prosecution history. Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1061—62 (Fed. Cir. 2016) (citing Straight Path IP Grp., Inv. v. Sipnet EUS.R.O., 806 F.3d 1356, 1362 (Fed. Cir. 2015). Here the broadest reasonable interpretation is limited by Appellants’ adoption of the Examiner’s interpretation of the meaning of claim terms in the Notice of Allowance. Based on these facts, we are persuaded that the Examiner reversibly erred in rejecting claim 1 as anticipated by Suzuki and we reverse the rejection. Because dependent claims 2, 3, and 5—16 stand or fall with claim 1, we also reverse the Examiner’s rejections of those claims. See 37 C.F.R. § 41.37(c)(iv). Rejection of claim 4 as obvious over Suzuki in view of Zhang Claim 4 depends from claim 1 and further requires wherein said designing comprises designing the plurality of sampling schemes based on results of measurements performed on substantially all wafers in at least one lot at substantially all measurement spots on said substantially all wafers, wherein the results of the measurements comprise raw measurement data, and wherein the method further comprises applying an absolute value or regression filter to the raw measurement data before designing the plurality of sampling schemes based on the raw measurement data. 7 Appeal 2015-005970 Application 13/457,383 App. Br. 12 (Claims App’x). Appellants argue that the arguments presented with respect to claim 1 apply to claim 4. Id. at 8. Because we reverse the rejection of claim 1, and secondary reference Zhang does not overcome the deficiencies in Suzuki, we also reverse the Examiner’s rejection of claim 4. CONCLUSION We reverse the Examiner’s rejections of claims 1—3 and 5—16 as anticipated by Suzuki. We further reverse the Examiner’s rejection of claim 4 as obvious over Suzuki in view of Zhang. DECISION For the above reasons, the Examiner’s decision is reversed. REVERSED 8 Copy with citationCopy as parenthetical citation