Ex Parte Soer et al

Patent Trial and Appeal Board

Nov 14, 2016

13060901 (P.T.A.B. Nov. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/060,901 02/25/2011
909 7590 11/16/2016
Pillsbury Winthrop Shaw Pittman, LLP
PO Box 10500
McLean, VA 22102
FIRST NAMED INVENTOR
Wouter Anthon Soer
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.
081468-0391429 2509
EXAMINER
ASFAW,MESFINT
ART UNIT PAPER NUMBER
2882
NOTIFICATION DATE DELIVERY MODE
11/16/2016 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):
docket_ip@pillsburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WOUTER ANTHON SOER,
MAARTEN MARINUS JOHANNES WILHELMUS VAN
HERPEN, and MARTIN JACOBUS JOHAN JAK
Appeal2015-004800
Application 13/060,901
Technology Center 2800
Before: CHUNG K. PAK, JULIA HEANEY, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 2, and 4--15. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The ASML Netherlands B.V. is identified as the real party in interest.
(Appeal Brief, filed September 8, 2014 ("App. Br."), 2.)
2 Final Rejection mailed January 7, 2014 ("Final Act.")
Appeal2015-004800
Application 13/060,901
CLAIMED SUBJECT MATTER
The claims are directed to a spectral purity filter which may be
included in a lithographic apparatus. The spectral purity filter may remove
harmful radiation at various wavelengths. (See Spec. i-f 4.) 3 Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A spectral purity filter comprising a body of material and
an aperture in the body of material, the spectral purity filter being
configured to enhance the spectral purity of a radiation beam by
being configured to absorb radiation of a first wavelength larger
than about twice the diameter of the aperture and to allow at least
a portion of radiation of a second wavelength to transmit through
the aperture, the first wavelength being larger than the second
wavelength.
(Claim Appendix, App. Br. 9 (emphases added).)
REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal are:
Klunder
Banine
US 2006/0146413 Al July 6, 2006
US 7,372,623 B2 May 13, 2008
REJECTIONS
Claims 1, 2 and 4--15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Klunder in view of Banine. (Final Act. 2.)
3 Application 13/060,901, Spectral Purity Filter, Lithographic Apparatus
Including Such A Spectral Purity Filter And Device Manufacturing Method,
filed February 25, 2011. We refer to the '"901 Specification," which we cite
as "Spec."
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Application 13/060,901
OPINION
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
In rejecting claim 1, the Examiner finds that Klunder discloses a
spectral purity filter used to "reflect light with wavelengths larger than about
twice the diameter of [an] aperture" but acknowledges that Klunder does not
disclose a spectral purity filter "being configured to absorb radiation of a
first wavelength larger than about twice the diameter of the aperture" as
recited. (Final Act. 2-3 (citing Klunder i-f 12).)
The Examiner therefore turns to Banine which discloses a spectral
filter capable of "reflecting or absorbing undesired radiation [which may
have wavelengths larger or smaller than the desired radiation or the radiation
beam.]" (Final Act. 3 (citing Banine 2:12-30).) Based on the
interchangeability of using reflecting and absorbing materials in the form of
apertures as a filtering material for removing undesired radiation, inclusive
of light with wavelengths larger than about twice the diameter of an aperture
(transmitting at least 50 or 90% EUV radiation while filtering, e.g., DUV
radiation), the Examiner concludes that a skilled artisan would have
"incorporate[ d] the radiation absorbing material of Banine in the spectral
purity filter of Klunder in order to avoid undesired stray light and improve
the result of filtering the radiation." (Final Act. 3--4; see also Klunder i-fi-1
14--20 and Banine, col. 2, 11. 13-35 and col. 3, 11. 4--22)
Appellants do not dispute the prior art teachings but contend that the
Examiner erred because neither reference discloses every limitation of claim
1. (App. Br. 5; see also Reply 2 ("Neither Klunder nor Banine teaches a
spectral purity filter that is configured to absorb radiation of a first
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Application 13/060,901
wavelength larger than about twice the diameter of the aperture, as recited
by claim 1. "). )4
Unlike anticipation, which "requires that all of the claim elements and
their limitations are shown in a single prior art reference," In re Skvorecz,
580 F.3d 1262, 1266 (Fed. Cir. 2009), obviousness is analyzed based on
what was known to have been within the knowledge and abilities of one of
ordinary skill in view of the collective teachings of the references. "Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellants' argument, directed to the individual - rather than the combined
-prior teachings, does not identify error in the Examiner's findings.
Appellants next argue that a skilled artisan would not have combined
the prior art teachings because there lacks a motivation to "tum Klunder's
body of material into a material that absorbs radiation while keeping the
same sized apertures" as the apertures in Banine are larger than those in
Klunder. (App. Br. 5, 6.)
All of the features of the secondary reference need not be bodily
incorporated into the primary reference and the skilled artisan is not
compelled to blindly follow the teaching of one prior art reference over the
other without the exercise of independent judgment. See Lear Siegler, Inc.
v. Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984). In this case, it is
undisputed that both prior art references teach a spectral purity filter used to
improve the spectral purity of a radiation beam. (Compare Ans. 3--4 with
App. Br. 4--7.) It is also undisputed that the light absorbing material taught
4 Reply Brief filed March 25, 2015 ("Reply").
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Appeal2015-004800
Application 13/060,901
by Banine can be used in the form of apertures (mesh structure) as a filtering
material for removing undesired radiation, inclusive of light with
wavelengths larger than about twice the diameter of the aperture (DUV
radiation) while transmitting EUV radiation. (Compare Ans. 3--4 with App.
Br. 4-7.) On this record, Appellants do not explain why the size difference
(if any) between the prior art apertures shows patentability of claim 1 -
which does not recite a size of the aperture. (App. Br. 4-7.) Banine, like the
filter recited in claim 1, requires configuring the light absorbing material in
the form of apertures to remove undesired radiation, e.g., DUV radiation.
(Compare Banine 2: 12-30 with claim 1 on appeal and Spec. i-fi-17-20.) No
reversible error has therefore been identified in this aspect of the
obviousness analysis. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (holding that the obviousness analysis "can take account of the
inferences and creative steps that a person of ordinary skill in the art would
emp 1 oy").
For the first time in the Reply Brief, Appellants raise the argument
that the material used to reflect or absorb the undesired radiation taught in
Banine does not have apertures but instead has a mesh structure. (Reply 2.)
Appellants, however, press on with a seemingly contradictory statement that
the mesh structure, in fact, has apertures which "are much larger than any
wavelength radiation that would be absorbed by the spectral purity filter."
(Id. at 3; see also App. Br. 7 (stating that "the apertures of Banine" are larger
than the apertures of Klunder).)
An argument raised for the first time in a Reply Brief is generally
considered waived if Appellants do not explain why it could not have been
raised previously. 37 C.F.R. § 41.41(b)(2) (2013); see also Ex parte
Nakashima, 93 USPQ2d 1834 (BPAI 2010) (informative) (explaining that
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Application 13/060,901
arguments and evidence not timely presented in the principal Brief will not
be considered when filed in a Reply Brief, absent a showing of good cause
explaining why the argument could not have been presented in the Principal
Brief); Exparte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative)
("Properly interpreted, the Rules do not require the Board to take up a
belated argument that has not been addressed by the Examiner, absent a
showing of good cause.").
Appellants here have not provided an explanation as to why the
argument was not raised previously. In any case, all of the features of the
secondary reference need not be bodily incorporated into the primary
reference and a skilled artisan is not compelled to blindly follow the
teaching of one prior art reference over the other without the exercise of
independent judgment. See Lear Siegler, 733 F.2d at 889. Other than
stating that the prior art spectral filters are not identical (i.e., having different
structures), Appellants do not explain why these differences would have
prevented a skilled artisan from combining the prior teachings in the manner
discussed above. Appellants have not shown reversible error in the
Examiner's prima facie case of obviousness. See KSR, 550 U.S. at 418
(holding that the obviousness analysis "can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ").
Appellants' arguments for independent claims 14 and 15 repeat those
for claim 1 which we have addressed supra. (See App. Br. 6-7.) Because
Appellants make no distinct arguments beyond the arguments regarding
claim 1, we affirm the rejections of claims 14 and 15 consistent with the
provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013).
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DECISION
The Examiner's rejection of claims 1, 2, and 4--15 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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