Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Current Status
The amendment to the title is accepted, and the objection withdrawn.
The rejection under 35 US 112 is withdrawn.
Claims 15, 18, 28 are currently amended, and claim 31 is also amended, though improperly is labeled “(Previously Presented)”.
Claims 3-6, 14-20, 27-33 are pending; claims 3-6 are withdrawn for non-election. With this Office Action, claims 14-17, 19, 20, 27-30, 32, and 33 are rejected, while claims 18 and 31 are objected.
Allowable Subject Matter
Claims 18 and 31 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Regarding claim 18, the prior art does not teach or suggest “The mirror for EUV lithography according to claim 14, wherein the base body consists essentially of an intermetallic phase” including the specific further arrangement for “having a Bravais lattice that matches a Bravais lattice of components of the base body in crystalline form, wherein the Bravais lattice of the intermetallic phase and the Bravais lattice of the components of the base body in crystalline form comprises any one of 14 Bravais lattices” as set forth in the claimed combination(s).
Regarding claim 31, the prior art does not teach or suggest “The mirror for EUV lithography according to claim 27, wherein the base body consists essentially of an intermetallic phase” including the specific further arrangement for “having a Bravais lattice that matches a Bravais lattice of components of the base body in crystalline form, wherein the Bravais lattice of the intermetallic phase and the Bravais lattice of the components of the base body in crystalline form comprises any one of 14 Bravais lattices.” as set forth in the claimed combination(s).
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Response to Arguments
Applicant's arguments submitted 2/5/26 have been considered, and are found to be at least partially persuasive regarding the previous indefiniteness rejection (REMARKS, pp. 6-7). The rejections pursuant to 35 USC 112 are withdrawn.
Applicant's arguments regarding the “Art-Based Rejections” (pp. 7-8) have been considered, but, respectfully, are not found persuasive. Applicant argues that the nature of the references render the combination unsatisfactory for the intended purpose and teach away from the combination.
With respect to these issues, first, the argument is on the basis that a person of ordinary skill in the art at the time of Applicant's invention (POSA) would only know the most limited disclosure provided by a reference, namely a preferred embodiment or an improvement upon well-known and underlying technology. However, references are relevant as prior art for all they contain. MPEP § 2123.
In the present case, the elements cited in the rejection are neither limited to nor shackled by limitations relevant to a preferred embodiment. Instead, such prior art elements are only limited by what has been disclosed before, i.e., the extent of disclosure provided by the entirety of the prior art available to POSA. Further, there is no indication that combination will not work if the parameters cited by Applicant are not used as there is no such criticality indicated in the references work in the same fashion/manner and under the same principles as those that allow Applicant’s mirror.
Second, it has been held that such nonpreferred embodiments failing to assert discovery beyond that known in the art does not constitute a “teaching away” unless such disclosure criticizes, discredits, or otherwise discourages the solution claimed. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971), In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994), In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004), (see MPEP §2124).
Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). “A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use.” In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994) (The invention was directed to an epoxy impregnated fiber-reinforced printed circuit material. The applied prior art reference taught a printed circuit material similar to that of the claims but impregnated with polyester-imide resin instead of epoxy. The reference, however, disclosed that epoxy was known for this use, but that epoxy impregnated circuit boards have “relatively acceptable dimensional stability” and “some degree of flexibility,” but are inferior to circuit boards impregnated with polyester-imide resins. The court upheld the rejection concluding that applicant’s argument that the reference teaches away from using epoxy was insufficient to overcome the rejection since “Gurley asserted no discovery beyond what was known in the art.” 27 F.3d at 554, 31 USPQ2d at 1132.). Furthermore, “[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed….” In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). (MPEP §2124).
In this case, Examiner finds neither discredit of the combination, nor destruction of the reference at least because they are in the same field of endeavor.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 14-20 and 27-33 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Murakami et al (US 6,377,655) in view of Moreno et al (“A Technique for Rapid Characterization of Intermetallics and Interface”).
To the extent the claims are definite, Murakami et al discloses a mirror for EUV lithography comprising a substrate (21) having a base body consisting essentially of an alloy system containing of at least one or more of aluminum, copper, beryllium, silver or gold (see column 6, lines 7-11 and column 8, lines 3-16), wherein the mirror is configured to reflect about 70% of EUV radiation between 13 to 15 nm via a reflective multilayer film/system (23) which includes alternating layers of molybdenum and silicon (see column 2, lines 5-16 and column 17, lines 9-15), except for explicitly stating that the base body of the alloy system imparts an intermetallic phase.
Moreno et al teaches it is well known to heat a base body consisting essentially of an intermetallic phase of an alloy system (i.e., Al-Cu system, see page 1003, column 1, line 10 to page 1005, column 1, line 15), wherein the base body consists essentially of an intermetallic phase (see page 1003, column 1, line 10 to column 2, line 1 along with Table 1) in which a stoichiometric standard composition is observed (see figures 1a to 4 along with Table 1), wherein the base body consists essentially of an intermetallic phase having a composition (Al-Cu) which corresponds to phase stability line(s) in an Al-Cu phase diagram of the alloy system (see Figure 4), wherein the alloy has a composition (Al-Cu) which, in a phase diagram of the alloy system (Al-Cu), lies in a region which is bounded by phase stability lines (see Figure 4), wherein the base body consists essentially of an intermetallic phase having a same Bravais lattice as components of the base body in crystalline form (see Table 1), wherein the alloy system is a binary system of (Al-Cu), one component of which is copper (see page 1002, column 1, line 5 along with figure 4) and wherein the alloy system (Al-Cu) is a binary aluminum-copper system (see page 1002, column 1, line 5 along with figure 4) in the same field of endeavor for purpose of increasing the strength, hardness and resistance to wear of the base body. Note figures 1a to 4 along with the associated description thereof.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention to modify the base body (substrate) of Murakami et al to include an intermetallic phase of a binary Al-Cu alloy system, as taught by Moreno et al, in order to meet desirable operational and/or environmental specifications with greater thermal stability, hardness and/or wear resistance, since it has been held to be within the level of one of ordinary skill in the art to select a known material on the basis of its suitability for use as a base body (substrate) of an article. Note: Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) and
In re Lashin, 125 USPQ 416.
As to the limitations of the substrate imparts a microstructure that remains unchanged in a predetermined temperature range or stable upon cooling to room temperature, the examiner is of the opinion that such above mentioned features are inherently present in Murakami et al in view of Moreno et al due to the fact that Moreno discloses the exact same materials (a binary Al-Cu system) which inherently possesses the same material properties.
Please be advised that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. I, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Claims 14-20 and 27-33 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Furuta (JP 2005-259949) in view of Moreno et al (“A Technique for Rapid Characterization of Intermetallics and Interface”).
To the extent the claims are definite, Furuta discloses a mirror for EUV lithography comprising a substrate (2) having a base body consisting essentially of an alloy system containing of at least one or more of gold, silver, aluminum, AlN, SiC, AlSiC or Si (see paragraph 0017), wherein the mirror is configured to reflect about 70% or more of EUV radiation of 60 nm or less (see paragraphs 0004-0006 and 0011-0013) via a reflective multilayer film/system (1) which includes Mo, Ru, Rh, MoSi or an alloy thereof (see paragraph 0015), except for explicitly stating that the base body of the alloy system imparts an intermetallic phase.
Moreno et al teaches it is well known to heat a base body consisting essentially of an intermetallic phase of an alloy system (i.e., Al-Cu system, see page 1003, column 1, line 10 to page 1005, column 1, line 15), wherein the base body consists essentially of an intermetallic phase (see page 1003, column 1, line 10 to column 2, line 1 along with Table 1) in which a stoichiometric standard composition is observed (see figures 1a to 4 along with Table 1), wherein the base body consists essentially of an intermetallic phase having a composition (Al-Cu) which corresponds to phase stability line(s) in an Al-Cu phase diagram of the alloy system (see Figure 4), wherein the alloy has a composition (Al-Cu) which, in a phase diagram of the alloy system (Al-Cu), lies in a region which is bounded by phase stability lines (see Figure 4), wherein the base body consists essentially of an intermetallic phase having a same Bravais lattice as components of the base body in crystalline form (see Table 1), wherein the alloy system is a binary system of (Al-Cu), one component of which is copper (see page 1002, column 1, line 5 along with figure 4) and wherein the alloy system (Al-Cu) is a binary aluminum-copper system (see page 1002, column 1, line 5 along with figure 4) in the same field of endeavor for purpose of increasing the strength, hardness and resistance to wear of the base body. Note figures 1a to 4 along with the associated description thereof.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention to modify the base body (substrate) of Furuta to include an intermetallic phase of a binary Al-Cu alloy system, as taught by Moreno et al, in order to meet desirable operational and/or environmental specifications with greater thermal stability, hardness and/or wear resistance, since it has been held to be within the level of one of ordinary skill in the art to select a known material on the basis of its suitability for use as a base body (substrate) of an article. Note: Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) and
In re Lashin, 125 USPQ 416.
As to the limitations of the substrate imparts a microstructure that remains unchanged in a predetermined temperature range or stable upon cooling to room temperature, the examiner is of the opinion that such above mentioned features are inherently present in Furuta in view of Moreno et al due to the fact that Moreno discloses the exact same materials (a binary Al-Cu system) which inherently possesses the same material properties.
Please be advised that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.”2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Figure 3 should be designated by a legend such as --Prior Art-- because only that which is old is illustrated. Note: Ponweiser et al. which teaches that the Al-Cu phase diagram was established by Murry in 1985 (i.e., see Murray JL., The Aluminum-Copper System, Int. Met. Rev. 1985, 30, pages 211-233.). See MPEP § 608.02(g). Corrected drawings in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. The replacement sheet(s) should be labeled “Replacement Sheet” in the page header (as per 37 CFR 1.84(c)) so as not to obstruct any portion of the drawing figures. If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The references to Hentzell et al., Aravind et al., Zhou et al., J.R. Davis “Physical Metallurgy of Aluminum Alloys”, Sartale et al. and Gou et al., previously cited on the PTO- 892 form, each teaches it is well known to used and employed a body consisting essentially of an “intermetallic phase” of an Al-Cu alloy system.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER D. CARRUTH whose telephone number is (571)272-9791, who can normally be reached on Mon-Fri 9:00 AM - 4:00 PM ET.
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If attempts to reach Supervisory Examiner Carruth by telephone are unsuccessful, the examiner’s supervisor, Director Allana L Bidder, can be reached on 571-272-5560. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER D. CARRUTH/Supervisory Patent Examiner, Art Unit 2871
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