DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5/21/2025 has been entered.
Response to Arguments
Minor amendments could result in the claims being eligible under 35 USC 101 by removing some alternative recitations or by noting that all measurement is conducted “according to the determined sampling scheme”, and also by positively reciting measurement is occurring in situations where it presently is recited as intended use for a signal that is initiated. See the section below for further details. If applicant wishes for clarifications they are welcome to contact the undersigned examiner.
Response to Arguments
Applicant argues that "Identifying the determined sampling scheme and/or model ... is surely a 'practical application.'". Examiner notes that applicant here omits that the model is explicitly claimed to be mathematical ("mathematical model"). Identifying a mathematical model by analyzing the throughput in numerical terms by measurements per unit time (which is effectively specifying via prose a mathematical equation in terms of [model] = [samples]/[time]) cannot be reasonably said to be outside the scope of mathematical relationships. The application of identifying a model here is not practical, rather, it is mathematical.
Applicant argues that the practical application is "the ability to identify the determined sampling scheme and/or model by taking into account actual constraints". These constraints are numerical. The model is explicitly mathematical. The identification is done (as described above) via mathematical equations. This is not a practical application, but rather a mathematical one.
Applicant highlights the director's decision from US patent no. 16/319,040. The present claims do not utilize AI in any manner, and have not been analyzed at a high level of generality, but rather at the same level of generality as the broadest reasonable interpretation of their scope set forth by their claim language. As such, they are perfectly compliant with the director's guidance in that case. Applying the guidance of the Alice decision and of MPEP 2106.05(f) regarding mere instructions to apply an exception does not conflict with the director's guidance, and MPEP 2106.05(f) is maintained to be appropriate to apply in this case.
Applicant highlights other court cases, but the guidance of the MPEP is clear regarding mere instructions to apply an exception in MPEP 2106.05(f). Applicant also highlights decisions made in other applications, but these cited applications do not have precedential decisions associated with them (and the details of specifying precisely how a manufacturing system creates a product from flat sheet stock are not present in the instant claim).
Notably where the instant claims recite that an inspection apparatus measures substrates and details specifically how it conducts those measurements, this is reasonably significantly more and a practical application. However, the independent claims as amended do not require this. Instead, for claim 1, this feature is recited in the alternative with a separate feature that does not provide for this: "measuring, by the inspection apparatus, one or more substrates to obtain measurement results and applying the measurement results to the determined mathematical model". This does not require that the determined sampling scheme be used, and does not practically apply the model. It instead provides mere instructions to apply the exception with a generic inspection apparatus, and then further using the numerical results in the "mathematical model", which is within the scope of mathematical relationships.
Similarly, for claim 24, the above discussed feature that could provide a practical application remains recited in the alternative with "initiate a signal" language that has intended use to gather data and apply it to the mathematical model as discussed above for the other alternative feature.
Claim 35 uses the language of "initiate a signal to cause measurement", and does not positively recite that the measurement actually occurs. This is effectively insignificant extra-solution activity in the form of selecting a particular data source or type of data to be manipulated. The measurement step cannot provide a practical application without the claims including it. Initiating a signal intended to cause something is not the same thing as actually accomplishing that thing. In view of this, none of the claims are currently eligible.
In view of the above, the claims remain rejected under 35 USC 101. Removing the ineligible alternative recitations for claims 1 and 24 would result in them being eligible, as would applying equivalent language to claim 35 as the eligible measuring step discussed above. Another option would be to continue including the alternative language of claim 1, but require that the second option’s measurement is also done “according to the determined sampling scheme” (as the first option requires).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 16-35 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea (mathematical relationships) without significantly more. Claim 16 recites:
A method comprising: (this falls within the statutory categories of invention)
by a hardware computer system (a generic computer system being used for the generic computer task of performing numerical calculations)
determining, [...], a sampling scheme for measuring data and/or (a sampling scheme for measuring data would include a vector or array of numerical values for parameters such as sampling rate)
a mathematical model for fitting measured data, (this is an explicit recitation of mathematical relationships in the form of a model, presumably as a series of numerical equations)
to monitor a process step in a lithographic process, (this is the intended use of the numerical equations in the form of a general link to the technical field of lithography monitoring, but the actual step of monitoring is not positively recited)
wherein the determining of the sampling scheme and/or mathematical model is at least partially based on a through-put model of an inspection apparatus, (this specifies that the numerical equations/mathematical relationships are calculated based on a separate “through-put model”, which is itself a series of mathematical relationships in the form of numerical equations and vectors/matrices of numerical values for parameters such as number of points to be measured and loading time)
the through-put model specifying a number of substrates processed per unit time by the inspection apparatus and/or number of measurements taken per unit of time by the inspection apparatus; (these are numbers used in the mathematical equations that are only linked to the actual physical operations by virtue of what the numbers are intended to represent, which amounts to merely generally linking the use of the exception (mathematical relationships) to a technical field)
measuring, by the inspection apparatus to measure one or more substrates according to the determined sampling scheme and/or (this alone would provide eligibility, but it is recited in the alternative with the below feature, which amounts to mere instructions to apply an exception. As such, this limitation cannot confer eligibility to the claim since it is optional and the other option does not confer eligibility)
measuring, by the inspection apparatus to measure one or more substrates to obtain measurement results and applying the measurement results to the determined mathematical model. (This could be considered insignificant extrasolution activity in the form of mere data gathering as per MPEP 2106.05(g). Alternatively, as per MPEP 2106.05(f), this is mere instructions to apply an exception, in this case to a generic machine or process. The claim fails to recite details of how a solution to a problem is accomplished and the limitations are set at a high level of generality, in the same manner discussed in detail in the response to arguments section of the prior office action dated 6/4/2025.)
This judicial exception is not integrated into a practical application. In particular, the claim only recites three additional elements – using a computer system to perform the determining and configuring steps (mere instructions to apply an exception), causing change to a machine (mere instructions to apply an exception), and generally linking the use of the mathematical values to the technical field of lithography. The computer in these steps is recited at a high-level of generality (i.e., as a generic processor performing a generic computer function of performing numerical calculations) such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The same is true regarding causing physical change to a machine/process. The same is true regarding the general link of the exception to the field of use of lithography, as per MPEP 2106.05(h). The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of using a computer system to perform the determining steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component (or a generic machine/process) cannot provide an inventive concept. The same is true for a mere general link to a technical field. The claim is not patent eligible.
Claim 24 is substantially similar to claim 16, and is rejected under the same grounds as those above.
Dependent claims 17-23 recite only further details of the mathematical concepts/relationships in the form of mathematical calculations to be performed, and remain ineligible for the reasons set forth above.
Claim 25 is substantially similar to claim 16, and is rejected under the same grounds as those above.
Claim 35 is substantially similar to claim 25, and is rejected under the same grounds as those above.
Dependent claims 26-34 recite only further details of the mathematical concepts/relationships in the form of mathematical calculations to be performed, and remain ineligible for the reasons set forth above.
Conclusion
The claims distinguish over the prior art by virtue of reciting that “the through-put model specif[ies] a number of substrates processed per unit time by the inspection apparatus and/or number of measurements taken per unit of time by the inspection apparatus” in the context of the claimed sampling scheme determination. The most pertinent prior art is already of record and is Sonderman (US 2004/0121495 A1) and Levy (US 7751046 B2).
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BIJAN MAPAR whose telephone number is (571)270-3674. The examiner can normally be reached Monday - Thursday, 11:00-8:30.
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/BIJAN MAPAR/ Primary Examiner, Art Unit 2189