Ex Parte Novak et alDownload PDFPatent Trial and Appeal BoardJun 17, 201612942201 (P.T.A.B. Jun. 17, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/942,201 11/09/2010 LiborNovak 121028 7590 06/21/2016 Scheinberg & Associates, PC PO BOX 164140 Austin, TX 78716-4140 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. F471 1216 EXAMINER MCCORMACK, JASON L ART UNIT PAPER NUMBER 2881 NOTIFICATION DATE DELIVERY MODE 06/21/2016 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): patents@scheinbergip.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LIBOR NOV AK MAREK UNCOVSKY, MILOS TOTH, MARTIN CAFOUREK, WILLIAM PARKER, MARCUS STRAW, and MARK EMERSON Appeal2014-008104 Application 12/942,201 Technology Center 2800 Before JOSEPH L. DIXON, THU A. DANG, and DEBRA K. STEPHENS, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1--41. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. Appeal2014-008104 Application 12/942,201 A. INVENTION According to Appellants, the invention relates to "charged particle beam systems that allow a work piece to be processed in a reactive gaseous environment" (Spec. i-f 1 ). B. ILLUSTRATIVE CLAIM Claim 1 is exemplary: 1. A charged particle beam system, comprising: a source of charged particles; a particle optical column for producing a focused beam of particles and directing the beam toward the sample, the particle beam optical column having an optical axis; an evacuable sample chamber; a motion stage positioned in the evacuable chamber, the motion stage movable relative to the optical axis; a cell located within the evacuable chamber for containing a sample for processing, the cell including: at least one portion of the cell having a body forming an enclosure connected and mounted on the stage and positioned on the stage and movable with the stage; at least one gas inlet for introducing gas into the cell; and at least another portion of the cell including a radially outwardly extending member fixed with respect to the particle optical column, wherein the body of the one portion of the cell and the radially outwardly extending member of the other portion of the cell cooperate to substantially close the cell during motions of the stage. 2 Appeal2014-008104 Application 12/942,201 C. PRIOR ART AND REJECTIONS The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kawata us 5,563,411 Oct. 8, 1996 Ishida us 6,031,235 Feb.29,2000 Maldonado US 7,015,467 B2 Mar. 21, 2006 Hatakeyama US 2008/0265159 Al Oct. 30, 2008 Kimba US 2008/0308729 Al Dec. 18, 2008 Buhler US 2009/0152460 Al June 18, 2009 Makino US 2009/0166557 Al July 2, 2009 Uncovsky US 2009/0242758 Al Oct. 1, 2009 Tanimoto US 2010/0133433 Al June 3, 2010 Claims 1---6, 8, 9, 11-26, 33, and 36 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama and Kimba. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama, Kimba, and Ishida. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama, Kimba, and Kawata. Claims 27, and 29-32 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama, and Maldonado. Claim 28 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama, Maldonado, and Uncovsky. Claim 34 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama, Maldonado, Kimba, and Kawata. Claim 35 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama, Maldonado, Kimba, and Tanimoto. Claims 37, 40, and 41 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama and Buhler. 3 Appeal2014-008104 Application 12/942,201 Claim 38 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama, Buhler, and Uncovsky. Claim 39 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Hatakeyama, Buhler, Uncovsky, and Makino. II. ISSUE The principal issue before us is whether the Examiner erred in finding that the combination of Hatakeyama and Kimba teaches or would have suggested a "cell" located within the evacuable chamber for containing a sample for processing, "at least one portion of the cell ... movable with the stage," wherein "the body of the one portion of the cell and the radially outwardly extending member of the other portion of the cell cooperate to substantially close the cell during motions of the stage" (claim 1 ). III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Hatakeyama 1. Hatakeyama discloses a sample surface inspection apparatus, wherein Figure 18 is reproduced below: !OETES~DR I ov 4 JMAGE FOfiMA l1CN/ SEGNM. PRiX:ESSJNG l:N!T 6() Appeal2014-008104 Application 12/942,201 Figure 18, reproduced above, discloses an inspection apparatus 700 comprising a stage 770 carrying a sample S thereon. Electrons generated from an electron source 31 are guided to the surface of the wafer S through a plurality of lenses, aligners, and apertures. The deflector 45 deflects the direction of an electron beam, and the detector 50 acquires through the imaging optical system 40, a pattern produced from a difference in the photoelectron generation characteristics through the irradiation of ultraviolet rays onto the surface of the wafer S (i-fi-f 143--48). 2. The components of the surface inspection system (i.e., the central conveyor system, the flattening mechanism, the cleaning mechanism, the drying mechanism, the resistive film coating mechanism, the inspection mechanism and the wafer stock interface) are provided in one large chamber, with the inside of the chamber maintained in a vacuum or an inert gas atmosphere (i-f 104). Kimba 3. Kimba discloses an apparatus for inspection with electron beam, wherein Figure 32 is reproduced below: Fig. 32 2-7- Figure 32, reproduced above, discloses a charged particle beam apparatus comprising a cylindrical divider 16-7 disposed surrounding the tip 5 Appeal2014-008104 Application 12/942,201 portion of the electron optical column (if 311 ), and a ring member 4-1-7 arranged so as to surround the sample S and fixedly attached to the sample table 4-7 (if 313). The sample table 4-7 is mounted on an upper face of a Y directionally movable section 5-7 of an XY stage 3-7 (if 300), wherein the X directionally movable section 6-7 on which the Y directionally movable section 5-7 is mounted is supported in a non-contact manner with respect to the stage table 7-7 so as to be movable freely in the X direction (if 301 ). Maldonado 4. Maldonado discloses an electron beam apparatus, wherein the minimum electron emission energy level at the emission surface is reduced to less than 5 eV, such as about 4.8 eV or 3.6 eV or 2.1 eV (col. 6, 11. 32- 35). IV. ANALYSIS Claims 1-26, 33, and 36 As to claim 1, Appellants contend "Hatakeyama does not teach introducing 'at least one gas inlet for introducing gas into the cell'" because the "drying mechanism is a separate station from the inspection mechanism 700 that includes a vacuum chamber" (App. Br. 11 ). Appellants also contend "Kimba' s cylindrical divider 16-7 extends downward and is not 'a radially outwardly extending member fixed with respect to the particle optical column"' (App. Br. 12). Further, "the A ring member ( 4-1-7) is positioned on the sample, and not on the stage, so Kimba has no 'body forming an enclosure connected and mounted on the stage and positioned on the stage and movable with the stage"' (App. Br. 13). We have considered all of Appellants' arguments and evidence presented. However, we disagree with Appellants' contentions regarding the 6 Appeal2014-008104 Application 12/942,201 Examiner's rejections of the claims. We agree with the Examiner's findings, and find Appellants have identified no error with the Examiner's conclusion that the claims would have been obvious over the combined teachings. Contrary to Appellants' contention Hatakeyama's "drying mechanism is a separate station from the inspection mechanism 700 that includes a vacuum chamber" (App. Br. 11), we agree with the Examiner's finding that Hatakeyama discloses an inspection mechanism (FF 1 ), wherein the drying mechanism and the inspection mechanism are provided in one large chamber with inert gas introduced therein (FF 2). Accordingly, we find no error with the Examiner's finding that Hatakeyama discloses and suggests a gas inlet for "introducing gas into the cell" as recited in claim 1. Further, the Examiner finds, and we agree, Kimba's divider 16-7 is fixed relative to the particle optical column 1-7 and cooperates with ring 4- 1-7 to effectively seal the cell (Ans. 28; FF 3). We further agree with the Examiner's finding that "Kimba specifically illustrates that sample (S) and ring ( 4-1-7) are mounted on stage (3-7), are connected to, positioned on, and movable with the stage" (Ans. 29; FF 3). In particular, Kimba discloses sample table 4-7 mounted on movable section 5-7 of stage 3-7 and cylindrical divider 16-7 disposed surrounding the tip portion of the electron optical column (FF 3). That is, contrary to Appellants' contention "the A ring member ( 4-1-7) is positioned on the sample, and not on the stage" (App. Br. 13), Kimba' s ring 4-1-7 is mounted on movable section 5-7 of the stage (FF 3). Accordingly, we find no error with the Examiner's reliance on Kimba for teaching and suggesting that "the body of the one portion of the cell [movable with the stage] and the radially outwardly extending member 7 Appeal2014-008104 Application 12/942,201 of the other portion of the cell cooperate to substantially close the cell during motions of the stage" as recited in claim 1. Although Appellants contend "Kimba's cylindrical divider 16-7 extends downward" (App. Br. 12), claim 1 does not preclude an "outwardly extending" member as encompassing a downwardly extending member, as long as the downward extension is outward from the optical column, i.e., not inward. Therefore, we find no error in the Examiner's reliance on Kimba's divider disposed surrounding the tip portion of the optical column and extending downwardly away from the column (FF 3) for disclosing and suggesting a "radially outwardly extending member," as recited in claim 1. Furthermore, the test for obviousness is what the combined teachings would have suggested to one of ordinary skill in the art. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Supreme Court has determined that the conclusion of obviousness can be based on the interrelated teachings of multiple patents, the effects of demands known to the design community or present in the marketplace, and the background knowledge possessed by a person having ordinary skill in the art. KSR Int 'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). Even assuming arguendo that our reviewing court were to find Kimba's divider that extends downward from the column is not extending outwardly from the column, Appellants have provided no evidence that providing a divider that extends outwardly instead of or in addition to downwardly would have been "uniquely challenging or difficult for one of ordinary skill in the art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor have Appellants presented evidence that such directional extension would have yielded unexpected results. The 8 Appeal2014-008104 Application 12/942,201 skilled artisan is "a person of ordinary creativity, not an automaton." KSR, 550 U.S. at 420-21. Based on this record, we find no error in the Examiner's rejection of independent claim 1 over Hatakeyama and Kimba. Appellants repeat the arguments for claim 1 with respect to claim 20 (App. Br. 12-13), accordingly, claim 20 falls therewith. Further, while Appellants contend the prior art does not disclose or suggest the repeated language of dependent claims 2---6, 8, 9, 11-19, 21-26, 33, and 36 (App. Br. 14--1 7), we find no error with the Examiner's finding that the combined teachings of Hatakeyama and Kimba teach or at least suggest the contested limitations. Ans. 7-19. Therefore, we adopt the Examiner's findings which we incorporate herein by reference. Consequently, Appellants have identified no reversible error in the Examiner's rejection of these claims. With respect to claims 7 and 10, Appellants merely contend Ishida, and Kawata do not "overcome the deficiencies of Hatakeyama and Kimba" (App. Br. 17-18). As discussed above, we find no deficiencies with respect to Hatakeyama and Kimba. Accordingly, we also affirm the rejection of claim 7 over Hatakeyama and Kimba, in further view of Ishida; and the rejection of claim 10 over Hatakeyama and Kimba, in further view of Kawata. Claims 27-32, 34, 35, and 37--41 With respect to independent claim 2 7, Appellants contend that Maldonado "does not teach or suggest that a single light source must be capable of providing light over a range of frequencies" (App. Br. 9). Although Appellants concede "Maldano [sic] discusses the use of different frequencies of light for different targets" (id.), Appellants contend 9 Appeal2014-008104 Application 12/942,201 "Maldonado is not teaching a photon source that can scan a range of wavelengths, but is describing a few different common wavelengths, any one of which would be suitable" (App. Br. 10). However, as the Examiner points out, "there is no claim language directed to scanning" but rather "the claim states that the beam is capable of multiple frequencies" (Ans. 28). We agree with the Examiner's finding that "[t]he specifically cited portion of Maldonado discloses a plurality of different wavelengths of light, which necessarily includes a plurality of frequencies associated with those wavelength" (Ans. 28; see also FF 4). Although Appellants contend that claim 27 requires "a single light source must be capable of providing light over a range of frequencies" (App. Br. 9), we agree with the Examiner that Maldonado's beam providing different frequencies of light for different targets is capable of providing light over a range of frequencies (Ans. 28; see also FF 4). Accordingly, we find no error with the Examiner's reliance on Maldonado for teaching and suggesting a "photon source capable of directing photons in a single convergent beam at multiple frequencies" (claim 27). Based on this record, we find no error in the Examiner's rejection of independent claim 27, and claims 29, 30-32 depending therefrom and falling therewith (App. Br. 10) over Hatakeyama in view of Maldonado. As for claim 28, Appellants do not argue that Uncovsky does not disclose or suggest the contested limitation, but rather, merely contend that Uncovsky "may produce . . . an undesirable side effect, not a useful process" and that "[the] combination of Hatakeyama and Uncovsky would not work for its intended purpose" (App. Br. 10-11). However, as the Examiner points out, Appellants do not disclose any evidence, other than 10 Appeal2014-008104 Application 12/942,201 mere attorney arguments (Ans. 32). While attorney arguments are helpful when directing us to evidence in the record, the arguments themselves do not constitute evidence. Argument of counsel cannot take the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). As such, these arguments are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Moreover, such contention is erroneously based on the premise of bodily incorporating the entire system of Uncovsky into the entire system of Hatakeyama. That is, Appellants are reviewing the combination from a different perspective than that of the Examiner. We find no error with the Examiner's finding that "Uncovsky discloses that photoelectron signals ... may be amplified in a gas cascade ... , "' wherein "[i]t would have been obvious ... to have combined Hatakeyama, Maldonado, and Uncovsky in order to enhance the signal of the photoelectrons, thereby enhancing resolution" (Ans. 6). That is, we find the Examiner has provided sufficient articulated reasoning with some rational underpinning to support the legal conclusion of obviousness. Appellants do not provide substantive arguments for claims 34 and 35 that depend from claim 33 other than contending the prior art references' deficiencies have been pointed out (App. Br. 19). Accordingly, we also affirm the rejections of claim 34 over Hatakeyama, Maldonado, and Kimba in further view of Kawata; and of claim 3 5 over Hatakeyama, Maldonado, and Kimba in further view of Tanimoto. 11 Appeal2014-008104 Application 12/942,201 As for claims 37, 40 and 41, although Appellants contend "Buhler does not disclose applying gas locally to a sample" (App. Br. 20), we agree with the Examiner's finding that "Buhler clearly illustrates ... that the gas is supplied towards the sample, and would thus be concentrated locally, and is at least provided locally" (Ans. 31-32). Thus, we find no error with the Examiner's finding that the combination of Hatakeyama and Buhler teaches or at least would have suggested the contested limitations of claim 3 7, and claims 40 and 41 depending therefrom. As for claim 38, Appellants repeat the arguments that Uncovsky "may produce ... an undesirable side effect, not a useful process" and that "[the] combination of Hatakeyama and Uncovsky would not work for its intended purpose" (App. Br. 21 ). However, as discussed above, we find such argument unpersuasive. Accordingly, we also affirm the Examiner's rejection of claim 38 over Hatakeyama, Buhler, and Uncovsky. Appellants do not provide substantive arguments for claim 39 depending from claim 3 8 other than contending that Makino does not overcome the deficiencies of Hatakeyama, Buhler, and Uncovsky (App. Br. 21-22). As discussed above, we find no deficiencies with respect to Hatakeyama, Buhler, and Uncovsky. Accordingly, we also affirm the rejection of claim 39 over Hatakeyama, Buhler, and Uncovsky, in further view of Makino. V. CONCLUSION AND DECISION We affirm the Examiner's rejections of claims 1--41 under 35 U.S.C. § 103(a). 12 Appeal2014-008104 Application 12/942,201 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 13 Copy with citationCopy as parenthetical citation