KLA-Tencor Corporation

Patent Trials and Appeals Board

Jul 23, 2021

2021000342 (P.T.A.B. Jul. 23, 2021)

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.
15/437,409 02/20/2017 Allen Park 5222-23501/P3559C1 4369
61507 7590 07/23/2021
Entropy Matters LLC
P.O. Box 2250
NEW YORK, NY 10021
EXAMINER
SATANOVSKY, ALEXANDER
ART UNIT PAPER NUMBER
2863
MAIL DATE DELIVERY MODE
07/23/2021 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 ALLEN PARK, ELLIS CHANG, PRASHANT A. AJI, and
STEVEN R. LANGE
Appeal 2021-000342
Application 15/437,409
Technology Center 2800
Before ADRIENE LEPIANE HANLON, KAREN M. HASTINGS, and
RAE LYNN GUEST, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3 and 19–23. See Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as KLA-Tencor Corp.
Appeal Br. 2.
Appeal 2021-000342
Application 15/437,409

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CLAIMED SUBJECT MATTER
The claims are directed to a method for determining one or more
inspection parameters for a wafer inspection recipe (Claim 1), a computer
readable medium with a program to perform the method (Claim 2), and a
corresponding system configured to perform the method (Claim 3). Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A computer-implemented method computer-implemented
method for determining one or more inspection parameters for
a wafer inspection recipe, comprising:
generating a three-dimensional representation of one or
more layers of a wafer based on design data;
determining one or more inspection parameters for a wafer
inspection recipe based on the three-dimensional representation,
wherein said generating and said determining are performed by
a computer system;
extracting two-dimensional design data dips for defects
detected using the wafer inspection recipe; and
while the wafer is being inspected using the wafer
inspection recipe, generating three-dimensional representations
for the defects based on output acquired for the defects using the
wafer inspection recipe and the two-dimensional design data
clips.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Volk et al. US 2005/0004774 A1 Jan. 6, 2005
Kulkarni et al. US 2007/0156379 A1 July 5, 2007
Kim et al. US 2010/0233593 A1 Sep. 16, 2010
Ramani et al. US 7,659,975 B1 Feb. 9, 2010

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REJECTIONS
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
22 112(b) Indefiniteness
1–3 103 Volk, Kulkarni
19–22 103 Volk, Kulkarni, Kim
23 103 Volk, Kulkarni, Ramani

OPINION
We shall not sustain the Examiner’s § 112 rejection of claim 22 for
reasons set out below. On the other hand, upon consideration of the evidence
in this appeal and each of Appellant’s contentions as set forth in the Appeal
Brief, as well as the Reply Brief, we determine that Appellant has not
demonstrated reversible error in the Examiner’s § 103 rejections (e.g., Ans.
4–9). In re Jung, 637 F.3d 1356, 1365–66 (Fed. Cir. 2011) (explaining the
Board’s long-held practice of requiring Appellants to identify the alleged
error in the Examiner’s rejection). We sustain the Examiner’s § 103
rejections for the reasons expressed by the Examiner in the Final Office
Action and the Answer.
We add the following for emphasis.

The § 112 rejection
Claims are definite if they
set out and circumscribe a particular area with a reasonable
degree of precision and particularity. It is here where the
definiteness of the language employed must be analyzed—not in
a vacuum, but always in light of the teachings of the prior art and
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of the particular application disclosure as it would be interpreted
by one possessing the ordinary level of skill in the pertinent art.

In re Moore, 439 F.2d 1232, 1046-47 (CCPA 1971). See also, Power-One,
Inc. v. Artesyn Techs., Inc., 599 F.3d 1343, 1350 (Fed. Cir. 2010);
Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed.
Cir. 1986) (The test for definiteness is whether “those skilled in the art
would understand what is claimed when the claim is read in light of the
specification”).
After review of the respective positions provided by Appellant and the
Examiner, we agree with Appellant that one of ordinary skill in the art
would have understood what is being claimed. A preponderance of the
evidence supports Appellant’s assertions that the Examiner’s rejection
should be reversed.
The Examiner’s position is that claim 22 is indefinite because the
claim refers to the “one or more layers” of claim 3, from which claim 22
depends, as three different layers, and as a result the three layers of claim 22
are somehow in conflict with claim 3’s “one or more layers” (Ans. 3–4;
Claims Appendix 15, 18). The Examiner also argues that claim 22’s “a layer
that is inspected using the wafer inspection recipe” is best understood to
include two other layers, the first being the claimed layer that is not formed
on the wafer before the wafer is inspected using the wafer inspection recipe,
and the second being the claimed layer that is formed on the wafer before
the layer that is inspected using the wafer inspection recipe is formed on the
wafer (Final Act. 8–9, Claims Appendix 18). However, the Examiner’s
position is not persuasive in this case.
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As Appellant explains, Figures 1 and 2 and page 5, line 16 to page 7,
line 9 of the Specification describe the various layers recited in claim 22
(Appeal Br. 4–6). Appellant’s disclosure provides clear support for three
different layers as recited in claim 22 (see Spec. 5–6 – describing layers 14,
16, and 18 as illustrated in Fig. 2). The Examiner’s position that one of these
layers somehow refers to the other two, or that claim 22 improperly narrows
the scope of claim 3 (Ans. 3–4; Final Act. 8–9) is not persuasive. Appellant
not only provides clear support for the three different layers of claim 22, but
Appellant further points out that claim 22’s three recited layers merely
narrows the scope of claim 3’s one or more layers, from which claim 22
depends. The Specification explicitly states how the three layers described in
claim 22 are constructed in Figure 2 (e.g., see Spec. 5–6). Appellant then
properly concludes that one of ordinary skill in the art could readily
determine the metes and bounds of the limitations recited in claim 22,
particularly in light of the identified relevant portions of the Specification
and Drawings (Appeal Br. 4–6). The Examiner has not sufficiently
explained why one of ordinary skill in the art would not have understood
that claim 22 refers to three different layers.
In light of these circumstances, we agree with Appellant that one of
ordinary skill in the art would have understood the claim language in light of
the Specification, as discussed throughout the prosecution history.
Thus, we reverse the Examiner’s § 112 rejection of all the claims
based on indefiniteness.

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The § 103 rejections
In assessing whether a claim to a combination of prior art elements or
steps would have been obvious, the question to be asked is whether the
improvement of the claim is more than the predictable use of prior art
elements or steps according to their established functions. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007). “[T]he analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” Id. at 418.
As found by the Examiner, the evidence fully supports that a skilled
artisan knew how to construct a process for generating three-dimensional
representations for defects using a wafer inspection recipe and two-
dimensional design data clips, while the wafer is being inspected (Ans. 6–9;
Final Act. 9–13).
Appellant however disputes the Examiner’s determination that it
would have been obvious to incorporate into Volk extracting two-
dimensional design data clips for detecting defects using the wafer
inspection recipe, as exemplified in Kulkarni (Appeal Br. 8–9). Appellant
also argues that neither Volk nor Kulkarni teaches that the three-dimensional
defect profiles are generated while a wafer is being inspected (Appeal Br. 6–
7).
However, these arguments are not persuasive of error in the
Examiner’s rejection because they fail to adequately consider the prior art as
a whole, and the inferences that one of ordinary skill would have drawn
therefrom, and thus does not adequately address the Examiner’s obviousness
position (see generally Ans.).
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The Examiner points to respective portions of Volk that provide a
teaching of the generation of three-dimensional defect profiles which occurs
during or while a wafer is being inspected (Ans. 4–9). Specifically, the
Examiner points to Volk’s generating a three-dimensional representation of
a defect while a defect is under review, and equates this to a teaching of the
claimed “while the wafer is being inspected” (Ans. 4, 6–8, e.g. see Volk, ¶¶
97, 121, 131 (the paragraphs taken together effectively explain that defects
are characterized as three-dimensional representations, which occurs during
the inspection process)). The Examiner also points to Volk’s teaching of
detecting defects during the inspection of a wafer, generally (Ans. 7–8,
Volk, e.g., ¶¶ 121, 131; see also ¶¶ 20–23, 53, 61–68, 121–131). The
Examiner then points to Kulkarni to exemplify its dynamic ability to review
defects as an essential part of a wafer inspection process (Kulkarni, e.g., see
¶¶ 12, 495, 505, 640). The Examiner then concludes that these teachings of
Volk and Kulkarni, respectively, can each be construed as providing a
teaching involving inspecting for defects while a wafer is being inspected
(Ans. 6–8).
“[T]he PTO must give claims their broadest reasonable construction
consistent with the specification. . . . Therefore, we look to the specification
to see if it provides a definition for claim terms, but otherwise apply a broad
interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). “[A]s applicants may amend claims to narrow their scope,
a broad construction during prosecution creates no unfairness to the
applicant or patentee.” Id.
While Appellant acknowledges the portions of Volk that discuss
defects under review and a wafer inspection process generally (Appeal Br.
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6–8, Volk, e.g. see ¶¶ 121, 131), Appellant contends that the Examiner’s
cited portions of Volk describing defects under review and a wafer/reticle
inspection process are not equivalent in meaning to the claimed “while the
wafer is being inspected” (Reply Br. 3–4, citing to Volk, ¶ 97). However,
Appellant has not explained with any specificity why the Examiner erred in
determining that the claim language “during inspection” encompasses
Volk’s process. Notably, we do not find—and Appellant has not directed our
attention to—any limiting definitions in the Specification, nor does
Appellant provide any persuasive reasoning or credible evidence to establish
that the Examiner’s interpretation of the language of claim 1 (and
corresponding language of claims 2 and 3) is unreasonable.
Therefore, in light of the breadth of the claim language and the
teachings of the prior art as a whole, we find Appellant’s argument that
Volk’s “defect under review” and “during inspection of the wafer” (Volk, ¶
61, 97, 121, 131) is not the same as the claimed “while the wafer is being
inspected” (Claims Appendix, 14–15), is not persuasive of reversible error.
Furthermore, as aptly pointed out by the Examiner, one of ordinary
skill in the art would have readily inferred that it would have been obvious
to reconstruct Volk’s generating 3D representations for defects in a wafer
(Ans. 7–8, Final Act. 9 ̶11, e.g., see Volk, ¶¶ 58, 121, 130 ̶132) by
incorporating Kulkarni’s two-dimensional design layout clips (Ans. 8 ̶9,
Final Act. 11 ̶13, Kulkarni, ¶¶ 199, 230, 364). As explained by the
Examiner, a skilled artisan would have been motivated to combine the
teachings of Volk and Kulkarni because Kulkarni provides the ability to use
the two-dimensional design layout clips which would improve the inspection
process of Volk by altering the sensitivity and speed of inspection
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processing in real-time (Ans. 8–9). The Examiner further explains that
Kulkarni’s 2D design layout clips help to improve the wafer inspection
recipe of Volk by improving the reliability and quality of the wafer
inspection process by providing a higher probability of finding and locating
particular types of defects in the design (Final Act. 11–13). See In re Keller,
642 F.2d 413, 425–26 (CCPA 1981) (“The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference . . . . Rather, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.”); see also, e.g., In re Fritch, 972 F.2d 1260, 1264–
65 (Fed. Cir. 1992) (it is well established that in evaluating references it is
proper to take into account not only the specific teachings of the references
but also the inferences which one skilled in the art would reasonably be
expected to draw therefrom).
Accordingly, we sustain the § 103 rejection of all of the claims on
appeal.

CONCLUSION
The Examiner’s decision is AFFIRMED.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
22 112(b) Indefiniteness 22
1–3 103 Volk, Kulkarni 1–3
19–22 103 Volk, Kulkarni,
Kim
19–22
23 103 Volk, Kulkarni,
Ramani
23
Overall
Outcome
1–3, 19–23

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED