Ex Parte Tabery et al

Board of Patent Appeals and Interferences

Apr 22, 2008

09955517 (B.P.A.I. Apr. 22, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CYRUS E. TABERY,
KHOI A. PHAN, BHARATH RANGARAJAN, BHANWAR SINGH, AND
RAMKUMAR SUBRAMANIAN,
APPELLANTS
____________

Appeal 2007-2180
Application 09/955,5171
Technology Center 1700
____________

Decided: April 22, 2008
____________

Before ADRIENE LEPIANE HANLON, LINDA M. GAUDETTE, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL

1 Application 09/955,517 (“517 application”) was filed 18 September 2001,
titled In-Situ or Ex-Situ Profile Monitoring of Phase Openings on
Alternating Phase Shifting Masks by Scatterometry. The real party in
interest is listed as Advanced Micro Devices. (Appeal Brief filed
22 September 2006 (“Br.”), at v2.)

Appeal 2007–2180
Application 09/955,517

A. Introduction
Appellants ("Tabery") appeal from the final rejection2 of claims 1, 2,
4, 5, 9–12, 25, and 26 under 35 U.S.C § 102(e) in view of Subramanian3.
Claims 15–24, the only other pending claims, have been withdrawn from
consideration. (Br. at 2.) We AFFIRM.
The claimed subject matter relates to an apparatus that makes masks
for high resolution photolithography for manufacturing semiconductor
integrated circuits. The masks fabricated by the claimed apparatus are called
“alternating aperture phase shift masks,” which we shall refer to as
“A-masks.” The masks fabricated by the Subramanian prior art reference
are called “complementary4 phase shift masks,” which we shall refer to as
“C-masks.”
Appealed claim 1 is representative and reads:
A system that measures an etch of a mask feature, comprising:
one or more mask creating components
that fabricate one or more features on an
alternating aperture phase shift mask;

2 Other rejections were withdrawn by the Examiner. (Examiner’s Answer
mailed 24 November 2006 (“Ans.”) at 3.)
3 Ramkumar Subramanian, Bhanwar Singh, and Michael K. Templeton,
Active Control of Phase Shift Mask Etching Process, U.S. Patent 6,562,248,
13 May 2003, based on application 09/817,518 filed 26 March 2001.
4 The term “complimentary” is used almost everywhere in Subramanian and
in the 517 Specification, although the term “complementary” is used at
Subramanian (2:55, 59, and 63). The latter usage appears to be correct,
while the former appears to be a typographical or word-processing error.
Except when quoting text, we shall use the term “complementary.”
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a driving component
that controls the one or more mask creating
components;
an emitting component
that directs light on to at least one of the features
on the alternating aperture phase shift mask; and
an analysis component
that measures one or more feature parameters
based on a light reflected and/or refracted from the
one or more features via a scatterometry system,
the measured feature parameters utilized by the driving
component to control the mask creating component
during fabrication process to improve the
fabrication process of the alternating aperture
phase shift mask and
during post-fabrication process to improve quality
control in the alternating aperture phase shift mask.
(Br. at 13; paragraphing added.)
The critical issues in this appeal are:
● what patentable weight does the term “alternating aperture
phase shift mask” impart to the claimed subject matter? and
● does Subramanian teach using a measured feature parameter to
“improve quality control in the alternating phase shift mask” during a post
fabrication process?
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B. Findings of Fact (FF)
Findings of fact throughout this Decision are supported by a
preponderance of the evidence of record.
The Disclosures of the 517 Specification and the Subramanian Patent
1. The disclosure of the 517 Specification is similar to the disclosure of
the Subramanian patent, in that large blocks of text are identical but for
different numerical labels of elements in the Figures and references in the
517 Specification to “alternating aperture phase shift masks” (and
occasionally “phase shift masks”) where Subramanian refers to
“complimentary phase shift masks.”
2. Principal citations in the following descriptions are to the
517 Specification; the differences cited in ¶ 1, supra, will generally not be
noted, but additional text in either disclosure, where relevant, will be
highlighted.
3. The 517 Specification explains that the invention relates to “a system
and method for measuring, monitoring and/or controlling the fabrication of
phase openings in an alternating aperture phase shift mask.”
(517 Specification at 1:6–9 and 4:29-31; Subramanian at 1:7-8 (referring to
“phase-shift masks”) and at 4:28-30 (referring to “complimentary phase shift
masks”).)
4. According to the 517 Specification, “[t]he process of manufacturing
phase shifting masks may consist of hundreds of steps.” (517 Specification
at 1:17-18; Subramanian at 1:41-42.)
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5. The 517 Specification describes the preparation of a phase shifting
mask by coating a transparent substrate, such as quartz, with an opaque
chrome layer, etching apertures through the chrome, and etching the quartz
substrate. (517 Specification at 1:18–20; Subramanian at 1:41-46.)
6. According to the 517 Specification, “[d]uring the quartz etching, the
patterned binary masks (e.g., chromium on quartz) can be fabricated to
achieve the phase difference between alternating sides of the chromium-
covered quartz.” (517 Specification at 1:20-22.)
7. In the words of the 517 Specification:
[c]ontrolling parameters like the width, depth and trench wall
angles of the openings etched into the chrome layer and
controlling the depth, width and trench wall angles of trenches
carved into the substrate (e.g., quartz, SiO2) is required to
enable controlled phase shifting of light that will pass through
the mask.
(517 Specification at 1:23–26; Subramanian at 4:45-49 (Subramanian does
not refer to trench wall angles).)
8. The 517 Specification describes and claims apparatuses and methods
that control the mask fabrication process with “runtime feedback,” which is
said to provide “superior mask fabrication as compared to conventional
systems and thus facilitates achieving smaller feature sizes with improved
shapes via more precise control of phase shifting of light passing through the
phase shift mask.” (517 Specification at 5:4–7; Subramanian at 4:31-36,
referring to “the complimentary phase shift mask.”)
9. Moreover, according to the 517 Specification, “[m]easuring apertures
after fabrication is substantially complete facilitates improving quality
control and thus facilitates achieving smaller feature sizes with improved
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shapes via more precise control of phase shifting.” (517 Specification
at 5:7–10.)
10. The 517 Specification explains that light reflected or refracted from
apertures or other structures “is indicative of at least one parameter of the
mask fabrication process (e.g., depth of opening, width of opening, trench
wall slope),” and the information can be used to enable “fabricating higher
quality complimentary phase shift masks as compared to conventional
systems.” (517 Specification at 5:14–21; Subramanian at 4:40-48
(Subramanian does not mention trench wall slope).)
11. The system used by the invention to measure aperture parameters
based on light reflected from the apertures and other features is said to
include a “scatterometry system” that is coupled to the measuring system
and the etching component driving system. (517 Specification at 8:8–11;
Subramanian at 5:22-29.)
12. Each of Figures 1–14 and 17–22 of the 517 Specification is said to
describe "an aspect of the present invention." (517 Specification at 8: 9–11;
Subramanian at 6:1-3 et seq.)
13. Figures 4, 5-13, and 15-22 of the 517 Specification are materially the
same as Figures 1, 5-13, and 15-22 of Subramanian, respectively, but for
numerical labels of certain elements, shading, and some descriptive labels.
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14. Figure 5 of the 517 Specification is said to show a phase shift
mask 590 at five different stages of a process of fabricating apertures 504,
506, and 508 in chrome layer 502 and quartz layer 500 (517 Specification
at 15:19–20; Subramanian at 9:12-40):
{Figure 5 of the 517 Specification is shown below:}5

{Figure 5 is said to show an A-mask of the invention at five stages of the
fabrication process.}

5 The text in curly braces before and after the Figures is provided to ensure
compliance with section 508 of the U.S. Rehabilitation Act for publication
of this Decision on the USPTO website pursuant to the Freedom of
Information Act. It is not part of the Decision.
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15. In the words of the 517 Specification:
The present invention thus enables fabricating apertures of
differing depths, widths and/or profiles where the fabrication of
the different depth are monitored and controlled. Enabling
fabrication of apertures of varying widths, depths and/or
profiles thus enables controlling diffraction and/or phase
shifting of light waves that pass through the apertures, with a
resulting increase in the fidelity of image transfer.
(517 Specification at 16:4–8; Subramanian at 9:34-40.)
16. Figure 6 of the 517 Specification shows the critical measurement in
the invention (see also Figures 1–3 of the 517 Specification):
{Figure 6 of the 517 Specification is shown below:}

{Figure 6 is said to show an embodiment of the invention.}
17. In Figure 6, light 606 reflects or refracts from apertures 604, 610, and
612 of a phase-shift mask 690 [not labeled in part Y], which comprises a
transparent (e.g., quartz) substrate 600 and an opaque (e.g., chrome)
coating 602; the reflected or refracted light 6106 is detected and analyzed to

6 [sic: label 610 is used to label two different elements in Figure 6 of the
517 Specification]
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yield information (“feature parameters” ) of apertures 604, 610, and 612 by
components illustrated in Figure 7, infra. (517 Specification at 16:9-23;
Subramanian at 9:41-61 (Subramanian refers specifically to “complimentary
phase shift mask 590”).)
18. A block diagram of the invention is said to be illustrated in Figure 7,
reproduced below:

{Figure 7 is said to show the system of the invention.}
19. In Figure 7, apertures 724 in A-mask 722 are illuminated by light
sources 744; light reflected or refracted by features on the mask is collected
by detectors 740 and processed by a measuring system 750 that comprises a
scatterometry system 751; the parameters are processed by processor 760
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and used to control etching component driving system 780, which drives
etching components 742. (517 Specification at 16:28 to 18:17; Subramanian
at 9:62 to 10:48.)
20. In particular, the 517 Specification teaches that “[o]ne or more light
sources 744 project light onto respective portions of the mask 722. A
portion may have one or more apertures 724 on that portion.”
(517 Specification at 16:32 to 17:1; Subramanian at 9:66 through 10:1.)
21. Figure 11, shown below, illustrates a table of acceptable and
unacceptable signatures:

{Figure 11 is said to show a Table of signatures.}
22. In the words of the Subramanian patent and the 517 application:
It can be seen that all the signatures are acceptable except a
signature for grid X7Y6. The set of signatures depicted in
FIG. 11 can be analyzed collectively as a master signature, can
be analyzed in subsets to evaluate, for example, intermediate
etching progress, and/or can be analyzed individually to
determine whether an acceptable etching condition exists. The
analysis of the signatures can be employed in-situ to control the
etching component driving system 80 (FIG. 7), so that finer
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depth [and/or] width control {and/or profile} of the etching may
be achieved.
(517 Specification at 20:3–10; Subramanian at 11:58–67; emphasis added;
square brackets indicate material [deleted] and braces indicate material
{added} in the 517 Specification.)
23. The 517 Specification continues, “In one example of the present
invention, the analysis of the signatures can be employed ex-situ to
determine whether a substantially completed mask has been fabricated
within desired tolerances.” (517 Specification at 20:10–12.)
24. Figures 13 and 14 of the 517 Specification are said to show flow
diagrams for an in-situ (fabrication) process, and a process that can be
adapted for an in-situ or an ex-situ (post-fabrication) process, respectively:
{Figures 13 and 14 of the 517 Specification are shown below:}

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{Figures 13 and 14 are said to show two different processes of the
invention.}
25. The flow chart shown in Figure 13 of the Subramanian patent appears
to differ from the flow chart shown in Figure 13 of the 517 Specification in
the numerical labels and the position of the boxes on the right hand side; but
the connectivity (i.e., the decision structure) appears to be identical.
26. In an embodiment, the process illustrated in Figure 13 of the
517 Specification comprises a general initialization 1300 and generation
1310 of a grid map for the mask; initial apertures are etched at 1320,
followed by measurement of the aperture signatures at 1322; the status of the
process is checked at 1330—if the grid has not been completed, etching
continues at 1320—but if it is complete, the signatures are analyzed at 1340;
the results of the analysis are then checked for unsatisfactory matches with
the desired parameters at 1350. (517 Specification at 21:1-4; Subramanian
at 12:31-47.)
27. In the words of the 517 Specification:
If the signatures are acceptable, the processor ends the iteration
of the etching process. If at 1350 an unacceptable signature is
found, the process advances to 1360 where a determination is
made concerning whether further etching attempts will be
made. If no further attempts are to be made, then the mask can
be marked for further processing and/or destruction and alarms
may be sent to subsequent methods and/or apparatus
concerning the unacceptably etched portion of the mask, after
which the etching process concludes.
(517 Specification at 21:15–21; Subramanian at 12:48–57; emphasis added.)
28. The 517 Specification continues:
In one example of the present invention, at 1350, rather than the
determination concerning whether a single unacceptable
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signature has been found the determination may concern
whether an unacceptable number of signatures, and/or whether
a cumulative error indicated by the collection of signatures has
been received.
(517 Specification at 21:21–24.)
29. The 517 Specification and Subramanian continue:
If the determination at 1360 is YES, then at 1362 the processor
controls relevant etching components to further etch the
apertures and to attempt to achieve a more precise depth and/or
width of the apertures. The present iteration is then ended and
the process returns to 1320 to perform another iteration.
(517 Specification at 21:25–28; Subramanian at 12:57–62.)
30. Figure 14 of the 517 Specification is said to illustrate another
methodology, which is described in the following words:
At 1400 general initializations and/or configurations are
performed. At 1420, the fabrication (e.g., etching) of the
apertures begins. At 1420, an incident beam is emitted onto
one or more apertures and/or gratings and at 1430 the beam
diffracted from the one or more apertures and/or gratings is
measured. At 1440, the signatures from the apertures and/or
gratings upon which the incident beam of 1420 was directed
and which produced the diffracted beam of 1430 are analyzed.
At 1450 a determination is made concerning whether an
acceptable mask has been produced.
(517 Specification at 22:1-9.)
31. The process diagrammed in Figure 14, from START to 1440 is seen
to be parallel to the process diagrammed in Figure 13 from START to 1340.
32. The question 1450, ACCEPTABLE MASK?, is seen to be
functionally the same as the question 1350, TU EXIST?
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33. The 517 Specification continues:
It is to be appreciated that while the method illustrated in
Fig. 13 may be practiced in-situ to control fabrication, the
method illustrated in Fig. 14 may be employed ex-situ in, for
example, quality control applications.
(517 Specification at 22:9-12.)
34. The 517 Specification continues:
If the determination at 1450 is YES, then an acceptable mask
has been produced and the mask may be forwarded for further
processing and/or use. If the determination at 1450 is NO, then
processing proceeds to 1460, where a determination is made
concerning whether the fabricated mask is correctable. If the
determination at 1460 is NO, then at 1470 the mask may be
marked for discard and processing will conclude. But if the
determination at 1460 is YES, then processing can return to
1410 where refabrication of the mask may occur.
(517 Specification at 22:12–18.)
35. The question 1460, CORRECTABLE? is seen to be functionally the
same as the question 1360, ATTEMPT FURTHER ETCHING?; and the
result, if the answer is NO, 1470, SCRAP MASK, is functionally the same
as END in Figure 13, while the result, if the answer is YES, 1410,
(RE)FABRICATE MASK, is functionally the same as re-entering the loop
at 1320, ETCH INITIAL APERTURES.
C. Discussion
“The PTO applies to the verbiage of the proposed claims the broadest
reasonable meaning of the words in their ordinary usage as they would be
understood by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
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the written description contained in the applicant’s specification.” In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
“The law of anticipation does not require that the reference ‘teach’
what the subject patent teaches. Assuming that a reference is properly ‘prior
art,’ it is only necessary that the claims under attack, as construed by the
court, ‘read on’ something disclosed in the reference, i.e., all limitations of
the claim are found in the reference, or ‘fully met’ by it.” Kalman v.
Kimberly-Clark Corp., 713 F.2d 760, 772 (Fed. Cir. 1983).
On appeal, the burden is on the appellant to demonstrate reversible
error by the Examiner. See Gechter v. Davidson, 116 F.3d 1454, 1460 (Fed.
Cir. 1997) (“[W]e expect that the Board's anticipation analysis be conducted
on a limitation by limitation basis, with specific fact findings for each
contested limitation and satisfactory explanations for such findings.”)
(emphasis added).
As an initial matter, we note that Tabery states that “[i]ndependent
claims 1, 25 and 26 recite similar limitations.” (Br. at 5.) Tabery has not
argued the limitations of any of the claims separately. Accordingly, all
claims stand or fall with claim 1. Moreover, Tabery has not disputed the
status of Subramanian as prior art against the appealed subject matter.
Tabery seeks exclusionary rights to a machine. The machine defined
by claim 1 comprises, at a minimum, one mask creating component that
fabricates one feature on an A-mask that is controlled by a driving
component; an emitting component that directs light onto that one feature of
the A-mask; and an analysis component that measures one feature parameter
based on light reflected or refracted from that one feature. The analysis
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component comprises a “scatterometry system” and provides the “measured
feature parameter” that is “utilized by the driving component.” The driving
component in turn controls the mask creating component, using the
measured feature parameters, “during the fabrication process to improve the
fabrication process,” and “during post-fabrication process to improve quality
control” in the A-mask.
The Examiner found that all of the limitations of the claims are met by
the system described by Subramanian. (Ans. at 4–5.) In particular, the
Examiner found that the apparatus disclosed by Subramanian “is inherently
capable of being used for creating either of the phase shift masks” (id. at 5)
and that “[i]t is inherent that the measuring system could be used to improve
quality control” (id.).
Tabery urges reversal on two grounds. First, Tabery finds that
“Subramanian discloses a system for monitoring and controlling aperture
etching in a complimentary phase shift mask,” rather than in an alternating
aperture phase shift mask. (Br. at 6-7.) Second, Tabery finds that
Subramanian does not disclose in situ and ex situ monitoring and control of
features of an A-mask. (Br. at 7.)
Central to both of Tabery’s arguments is the assumption that the
recitations of the A-mask in the claims necessarily define a distinct machine
from a machine that performs similar functions on a different kind of mask,
such as a C-mask. This assumption is not generally true. In re Casey, 370
F.2d 576, 580 (CCPA 1967) (quoting In re Otto, 312 F.2d 937 (CCPA 1963)
(precedent indicates that “inclusion of the material or article worked on by a
structure being claimed does not impart patentability to the claims”)). A
claim to a machine defines the machine by structures and relations between
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structures that permit (one could equally well say “enable” or “cause”)
certain transformations of physical subject matter to be carried out by the
machine. To take a simple example, a claim to a device intended for
dispensing a few small solid objects at a time, such as kernels of popped
popcorn, may not be defined adequately by recitations of function and
intended use to avoid anticipation by disclosure of a device for dispensing
liquids such as oil. See In re Schreiber, 128 F.3d 1473, 1477-78 (Fed.
Cir. 1997). The question in this case is whether Tabery has shown reversible
error in the Examiner’s determination that the recitation of the A-mask is not
entitled to patentable weight in claim 1.
Specifically, Tabery argues:
A complimentary phase shift mask is inherently different from
an alternating aperture phase shift mask. A complimentary
phase shift mask is created by a two-step masking process. In
the masking process, two masks are used to expose a gate layer,
wherein light passing through one or more masks may be phase
shifted to facilitate selective interference and cancellation of
light waves. Then, a second masking operation is performed
after the phase shifting masking operation. In this second
masking operation, the complimentary features are obliterated
by exposure to light passing through a second mask prior to
forming the patterned resist layer. . . . to take advantage of
complimentary phase shift masking, precise control of the depth
and/or width of the openings in the complimentary phase shift
mask is required. (See Col. 2, lines 54–67 and col. 3,
lines 1-10).
(Br. at 6; underscore added.)
In contrast, according to Tabery:
an alternating aperture phase shift mask is created by a one-step
masking process. Typically, transparent films are deposited
over the desired transparent areas using a second level
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lithography and etch technique or vertical trenches are etched
directly in the substrate. This creates transmission regions on
either side of a patterned opaque feature, with one of these
transmission regions being phase-shifted from the other.
Controlling the width and depth of these regions etched into the
substrate is required to enable controlled phase shifting of light
that will pass through the mask. Thus, Subramanian et al. is
silent regarding a system that facilitates monitoring, measuring
and/or controlling the fabrication of apertures in alternating
aperture phase shift masks.
(Br. at 7; underscore added, bold emphasis original.)
These arguments are not persuasive because they do not identify
structures and functions required by the claimed subject matter that are not
present in Subramanian. Tabery’s argument concerning the C-mask forming
machine described by Subramanian conflates the process by which the
C-mask is made with the process by which the C-mask is used. Tabery has
not directed our attention to any evidence in the record that a feature of a
C-mask, such as one of the apertures shown in Subramanian Figures 5 or 7,
reproduced supra, must be made by the use of two masks that facilitate
selective interference to define the apertures. Similarly, Tabery’s
description of making an A-mask, quoted supra, does not identify what
structures and functions are required of a machine that makes an aperture in
an A-mask that are not present in the machine described by Subramanian.
According to Tabery, a machine that makes an A-mask must control
“the width and depth” of “regions etched into the substrate in order to enable
controlled phase shifting of light that will pass through the mask.” Tabery
appears to argue—and this part of the argument appears to be
unexceptional—that “precise control of the depth and/or width of the
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openings in the complimentary phase shift mask is required” in order to
fabricate a proper A-mask. The weight of the evidence indicates that the
machine described by Subramanian is capable of precisely controlling the
width and depth of apertures in a C-mask. The question then becomes, has
Tabery shown that an aperture in an A-mask necessarily differs from an
aperture in a C-mask?
As shown in Figures 5 and 7 of Tabery’s specification, which are
reproduced and described supra, an aperture (e.g., 604, 610, 612, 724) is a
feature of an A-mask. As Tabery argues in the underscored passages quoted
supra, the width and depth of the regions etched into the substrates of both
kinds of masks are required to enable controlled phase shifting of light that
will pass through the mask. On the present record, Figures 5 and 7 of the
517 Specification and Figures 5 and 7 of Subramanian do not differ
materially. In particular, Subramanian teaches that “[o]ne or more light
sources 44 project light onto respective portions of the mask 22. A portion
may have one or more apertures 24 on that portion.” (Subramanian at 9:66
through 10:1; emphasis added: FF 20.) Thus, Subramanian teaches and
claims7 a machine that measures and makes single features on masks,
analyzes and further etches, as does the 517 application.
Tabery has failed to present any credible evidence that the apertures
shown in Figure 5 of Subramanian, though they are features on a C-mask,
differ from the apertures shown in Figure 5 of the 517 Specification, though
the latter are features on an A-mask. Moreover, Tabery has failed to argue
or to present any credible evidence that the process of light emission,

7 See claim 1, Subramanian at 15:16-40, especially ll. 25–31 and 35–37.
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reflection or refraction from a single aperture in a C-mask, or analysis of that
light, or the subsequent control of etching of the mask, differs from the
corresponding processes for making an A-mask, or analysis of light or the
subsequent control of etching of the aperture in the A-mask. Thus,
considering the full scope of claim 1, the recitation of an A-mask amounts to
no more than recitation of a piece on which the claimed machine works.
The recitation of the piece worked on does not, without more serve to
distinguish the machine from an otherwise identical machine that works on a
different piece. Accordingly, Tabery has not shown error in the Examiner’s
finding that Subramanian describes a mask-making machine within the
scope of the limitations of claim 1 discussed thus far.
We now turn to Tabery’s second argument, which we understand not
to be limited to the type of mask worked on by the machine. Claim 1
requires that the machine be able to “improve quality control” of an A-mask
“during fabrication process” (in situ) and “during post fabrication process”
(ex situ). If Subramanian does not describe such processes, the case for
anticipation fails.
Subramanian clearly describes in Figure 13 “in situ” control of the
mask creating component during mask fabrication to direct and improve
aperture formation. As discussed supra, the recitation of the type of mask
has not been shown to result in any structures or relations between structures
required to etch an aperture, measure light reflected or refracted from the
aperture, analyze the light by scatterometer, and use the derived parameters
to control the further etching of the aperture. Therefore, the first prong of
Tabery’s second argument fails to show reversible error.
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As for ex situ quality control, we note that both Subramanian and the
517 Specification state that:
While . . . the methodologies of FIG. 13 and FIG. 14 are shown
and described as a series of blocks, it is to be understood and
appreciated that the present invention is not limited by the order
of the blocks, as some blocks may, in accordance with the
present invention, occur in different orders and/or concurrently
with other blocks from that shown and described herein.
(Subramanian at 12:21–30 [typographical error “15” corrected to -14-];
517 Specification at 20:26–31.) Both disclosures also teach that “[t]he set of
signatures depicted in Fig. 11 can be analyzed collectively as a master
signature.” (Subramanian at 11:59–61; 517 Specification at 20:4–5.) And
both Subramanian and the 517 Specification describe a stage in the process
(Subramanian, Figure 13, 1360; 517 specification, Figure 13, 370) at which
the question “ATTEMPT FURTHER ETCHING?” is answered. If the
answer is “NO,” both Subramanian and the 517 Specification instruct that
“the mask can be marked for further processing and/or destruction and
alarms may be sent to subsequent methods and/or apparatus concerning the
unacceptably etched portion of the mask, after which the etching process
concludes.” (Subramanian at 12:53–57; 517 Specification at 21:18–21;
emphasis added.)
The analysis of the set of signatures as a “master signature,” the
destruction of the mask, and the sending of alarms “to subsequent methods
and/or apparatus” have the ear-marks of post-fabrication adjustments of the
process for future mask fabrication runs. Bearing in mind that the
specifications are directed to those of ordinary skill in the lithographic mask
fabrication arts, who are highly skilled and who are presumed to be able to
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rearrange the order of blocks in the flow diagrams of Figures 13 and 14 of
Subramanian, we have no difficulty finding that Subramanian describes
modification of subsequent processing in response to the preparation of
failed masks. After all, to what useful purpose would a mask-designing
engineer put an alarm “sent to subsequent methods and/or apparatus” that
certain areas of a mask are not being fabricated to specifications? In a
workplace dedicated to making masks under automated control, one answer
must be: to adjust the mask-masking process to correct the errors that arose
in those places. Such an adjustment meets the ex situ, post-fabrication
quality control step required by claim 1.
Consistent with this finding, we find no material difference between
the processes diagrammed in Figures 13 and 14 of the 517 Specification.
The supposed distinction between the two processes—that only Figure 14
includes ex situ post processing quality control (517 Specification
at 22:9-12)—does not withstand scrutiny. In the processes defined by
Figure 13, the decision node 1350, asking if discrepancies between the
measured signatures and the desired signatures, the analysis at 1360,
“ATTEMPT FURTHER ETCHING?,” and the decision (YES, control
etching; NO, mark for destruction, with alarms sent concerning the
unacceptably etched portion of the mask (517 Specification at 21:17-24)
correspond to the Figure 14 decision node 1450, “ACCEPTABLE MASK?”,
which if correctable (1460), is sent for further processing, and if not, is
scrapped (1470). Thus, the processes defined by Figure 13 of Subramanian
have the same capabilities as those defined by Figure 14 of the 517
application.
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Appeal 2007–2180
Application 09/955,517

It is well-established that “[a] reference anticipates a claim if it
discloses the claimed invention “such that a skilled artisan could take its
teachings in combination with his own knowledge of the particular art and
be in possession of the invention.” In re LeGrice, 301 F.2d 929, 936
(CCPA 1963) (emphasis original); see also, In re Donohue, 766 F.2d 531,
533 (Fed. Cir. 1985); In re Graves, 69 F.3d 1147, 1152 (Fed. Cir. 1995).
Applying that proposition to the present facts, we find that Tabery has failed
to prove reversible error in the finding by the Examiner that Subramanian
anticipates the subject matter of claim 1. The other claims accordingly fall
with claim 1.
E. Summary
In view of the record and the foregoing considerations, it is:
ORDERED that the rejection of claims 1, 2, 4, 5, 9–12, 25,
and 26 under 35 U.S.C § 102(e) in view of Subramanian is AFFIRMED; and
FURTHER ORDERED that no time period for taking any
subsequent action in connection with this appeal may be extended under
37 C.F.R. § 1.136(a).
AFFIRMED

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Appeal 2007–2180
Application 09/955,517

Himanshu S. Amin
Amin & Turocy, LLP
National City Center
1900 E. 9th Street, 24th floor
Cleveland OH 44114

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