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 .
Response to Amendment
Applicant’s amendments, filed 15 January 2026, with respect to claims 1 and 6 have been entered. Therefore, the objection to claim 6 and the rejections of claims 1 and 6 under 35 U.S.C. 112(b) have been withdrawn.
Response to Arguments
Applicant’s arguments with respect to the rejections of the claims under 35 U.S.C. 103 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in the United Kingdom on 06 June 2022. It is noted, however, that applicant has not filed a certified copy of the GB 2208289.5 application as required by 37 CFR 1.55.
Specification
The abstract of the disclosure is objected to because of the following:
The abstract exceeds 150 words.
Additional text is present at the bottom of the sheet.
The abstract refers to “The similarity measures stored in step f” (line 15), but there is no prior reference to a “step f” in the abstract.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 17 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 17 recites the limitations "The computer program product" in line 1 and “the program” in line 2. There is insufficient antecedent basis for these limitations in the claim. For the purpose of compact prosecution, the Examiner has interpreted “The computer program product” to mean “A computer program product”, and “the program is executed” to mean “the instructions are executed”.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1 and 11-17 are rejected under 35 U.S.C. 103 as being unpatentable over Nicolopoulos et al. (U.S. Patent Application Publication No. 2011/0220796 A1), hereinafter Nicolopoulos, in view of Corbett et al. (U.S. Patent Application Publication No. 2011/0144922 A1), hereinafter Corbett, and Winkelmann et al. (U.S. Patent Application Publication No. 2018/0010909 A1), hereinafter Winkelmann.
Regarding claim 1, Nicolopoulos discloses a method of indexing an electron diffraction pattern (paragraph 0026) obtained from a material having one or more crystalline phases (paragraph 0001), the method comprising:
a) obtaining a number of experimental electron diffraction patterns from a sample of the material (paragraph 0026), according to a set of experimental conditions in which an electron beam is incident at a number of locations upon the sample (paragraph 0079) and electrons scattered from the sample are monitored by a detector (paragraph 0091);
b) obtaining a master dataset for each phase of the sample of the material (paragraphs 0063, 0068, patterns 44, 46), each master dataset representing the three dimensional distribution of the electrons scattered from a crystal of the given phase (paragraph 0068), according to a set of simulation conditions (paragraph 0068);
c) loading the master dataset into the memory of a computer (paragraph 0034);
d) generating a simulated template at a first resolution (paragraph 0090) in the memory of the computer (paragraph 0034), wherein the simulated template represents a simulated electron diffraction pattern for a nominal crystallographic orientation (paragraph 0088);
e) comparing the simulated template with the experimental electron diffraction pattern (paragraph 0088) so as to generate a corresponding similarity measure (paragraph 0089, correlation index);
f) storing the crystallographic orientation and the corresponding similarity measure for the given simulated template (paragraph 0088: the orientation and similarity measure data inherently must be stored to enable creation of a correlation indexes map from the orientation and similarity measure data);
g) repeating steps d to f for all crystallographic orientations according to one or more crystallographic orientation intervals (paragraph 0034);
h) repeating steps d to g for each location of the sample (paragraph 0030);
i) repeating steps c to h for each phase (paragraph 0034); and,
j) analysing the similarity measures stored in step f so as to select at least one resultant indexed phase and orientation for each location (paragraph 0088).
Nicolopoulos fails to disclose that the master dataset is loaded into the primary memory; the simulated template is generated in the primary memory; and the simulated template is generated by using the master dataset from the primary memory and geometric calibration data describing the relative positions of at least the location on the sample, the electron beam and the detector.
However, Corbett discloses loading a dataset into the primary memory of a computer (paragraph 0140); and generating a simulated template in the primary memory of the computer (paragraph 0141).
The disclosure of Corbett demonstrates that the function of the primary memory of a computer is known in the art of electron diffraction pattern analysis. Corbett also shows that substituting the primary memory of a computer for other types of memory in a method of electron diffraction pattern analysis yields the predictable result of enabling the storage of data and executable instructions or software which can then be accessed by the computer (Corbett, paragraphs 0138-0139). “[W]hen a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” United States v. Adams, 383 U.S. 39 (1966). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos to include that the master dataset is loaded into the primary memory of the computer; and that the simulated template is generated in the primary memory of the computer, because it is not inventive to substitute one known element for another which yields predictable results to one of ordinary skill in the art. See MPEP 2143 I (B).
Nicolopoulos in view of Corbett fails to disclose that the simulated template is generated by using the master dataset from the primary memory and geometric calibration data describing the relative positions of at least the location on the sample, the electron beam and the detector.
However, Winkelmann discloses generating a simulated template by using the master dataset from the primary memory (paragraph 0021, lines 12-17) and geometric calibration data describing the relative positions of at least the location on the sample, the electron beam and the detector (paragraphs 0023, 0016-0017).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos in view of Corbett to include generating a simulated template by using the master dataset from the primary memory and geometric calibration data describing the relative positions of at least the location on the sample, the electron beam and the detector, based on the teachings of Winkelmann that this minimizes simulation errors due to manufacturing defects (Winkelmann, paragraph 0021).
Regarding claim 11, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
In addition, Nicolopoulos discloses that a plurality of locations are arranged on the sample surface in an array (paragraph 0022).
Regarding claim 12, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
In addition, Nicolopoulos discloses that the similarity measure is an image correlation measure (paragraph 0088).
Regarding claim 13, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 12 discloses the method according to claim 12.
In addition, Winkelmann discloses that the image correlation measure is a normalised cross correlation coefficient, NCCC (paragraph 0056).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos in view of Corbett and Winkelmann to include that the image correlation measure is a normalised cross correlation coefficient, NCCC, based on the additional teachings of Winkelmann that this provides an advantageously stable approach to optimizing the similarity between diffraction patterns (Winkelmann, paragraph 0060).
Regarding claim 14, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
In addition, Nicolopoulos discloses displaying information relating to one or more of the phase identity and orientation of the crystal at the or each location (paragraphs 0090, 0126).
Regarding claim 15, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
In addition, Nicolopoulos discloses a system for indexing an electron diffraction pattern (paragraph 0026) obtained from a material having one or more crystalline phases (paragraph 0001), the system comprising:
a computer system including a central processing unit having a primary memory (paragraph 0034; computers inherently include a central processing unit having a primary memory; see Dictionary.com, computer (scientific), “All computers contain a central processing unit that interprets and executes instructions; input devices, such as a keyboard and a mouse, through which data and commands enter the computer; memory that enables the computer to store programs and data; and output devices, such as printers and display screens, that show the results after the computer has processed data.”), wherein the system is configured when in use to perform the method according to claim 1 (paragraphs 0111-0112).
Regarding claim 16, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 15 discloses the system according to claim 15.
In addition, Nicolopoulos discloses an electron detector configured to receive electrons scattered from a sample as a result of an electron beam interacting with the sample and to generate data representing the detected scattered electrons for analysis (paragraph 0137).
Regarding claim 17, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method of claim 1.
In addition, Nicolopoulos discloses the computer program product comprising instructions which, when the program is executed by a computer, cause the computer to carry out the method of claim 1 (paragraph 0121).
Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 above, and further in view of Mansfield et al. (U.S. Patent No. 5,488,476 A), hereinafter Mansfield.
Regarding claim 2, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
Nicolopoulos in view of Corbett and Winkelmann fails to disclose that during step d, the simulated templates are only generated whilst the master dataset is present within the primary memory of the computer.
However, Mansfield discloses that during step d, the simulated templates are only generated whilst the master dataset is present within the primary memory of the computer (column 20, lines 8-28).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos in view of Corbett and Winkelmann to include that during step d, the simulated templates are only generated whilst the master dataset is present within the primary memory of the computer, based on the teachings of Mansfield that this ensures proper mathematical analysis of different types of diffraction patterns (Mansfield, column 20, lines 8-28).
Regarding claim 3, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
Nicolopoulos in view of Corbett and Winkelmann fails to disclose that the simulated templates are discarded from the primary memory before step g.
However, Mansfield discloses that the simulated templates are discarded from the primary memory (column 20, line 36) before step g (column 21, lines 7-8).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos in view of Corbett and Winkelmann to include that the simulated templates are discarded from the primary memory before step g, based on the teachings of Mansfield that discarding and replacing data provides results with improved signal to noise ratio (Mansfield, column 54, lines 18-48).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 above, and further in view of Toth et al. (U.S. Patent Application Publication No. 2011/0064191 A1), hereinafter Toth.
Regarding claim 4, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
Nicolopoulos in view of Corbett and Winkelmann fails to disclose that step h is repeated more than 100000 times.
However, Toth discloses that step h is repeated more than 100000 times (paragraph 0079, lines 25-27).
Optimizing the number of repetitions of a method step is well within the bounds of normal experimentation. See MPEP 2144.05 II (A). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In addition, “[a] particular parameter must first be recognized as a result-effective variable, i.e., a variable which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation.” In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). Furthermore, the specification of the present application fails to present evidence of the criticality of the claimed number of iterations. In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969); In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1366 (Fed. Cir. 1997). In the case at hand, Toth teaches the number of iterations of a method step involving irradiating each location of a sample with an electron beam as a variable which achieves a recognized result, i.e., forming a map of the sample surface. Therefore, the prior art teaches adjusting the number of iterations of a method step and identifies said iterations as result-effective variables. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective time of filing to optimize the number of iterations to meet the claimed number of limitations since it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 above, and further in view of Wright et al. (U.S. Patent No. 6,835,931 B2), hereinafter Wright.
Regarding claim 5, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
Nicolopoulos in view of Corbett and Winkelmann fails to disclose that the crystallographic orientation interval used is in the range 1 to 3 degrees.
However, Wright discloses that the crystallographic orientation interval used is in the range 1 to 3 degrees (column 7, lines 3-4).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos in view of Corbett and Winkelmann to include that the crystallographic orientation interval used is in the range 1 to 3 degrees, based on the teachings of Wright that this interval allows for the implementation of an automated transform to make high intensity lines easier to detect (Wright, column 6, line 55 to column 7, line 20).
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 above, and further in view of Penman et al. (U.S. Patent Application Publication No. 2015/0369760 A1), hereinafter Penman.
Regarding claim 8, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
Nicolopoulos in view of Corbett and Winkelmann fails to disclose that the first resolution is lower than a native resolution at which the experimental electron diffraction pattern was originally produced by the detector.
However, Penman discloses that the first resolution is lower than a native resolution at which the experimental electron diffraction pattern was originally produced by the detector (paragraph 0016, lines 3-5).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos in view of Corbett and Winkelmann to include that the first resolution is lower than a native resolution at which the experimental electron diffraction pattern was originally produced by the detector, based on the teachings of Penman that this speeds up computation while still producing improved accuracy (Penman, paragraphs 0016-0017).
Regarding claim 9, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
Nicolopoulos in view of Corbett and Winkelmann fails to disclose converting the experimental diffraction patterns to the first resolution prior to step d.
However, Penman discloses converting the experimental diffraction patterns to the first resolution prior to step d (paragraph 0016: prior to generating the simulated template, analysis is performed on a copy of the experimental diffraction patterns, wherein the copy has already been converted to a reduced resolution).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos in view of Corbett and Winkelmann to include converting the experimental diffraction patterns to the first resolution prior to step d, based on the teachings of Penman that this speeds up computation while still producing improved accuracy (Penman, paragraphs 0016-0017).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 above, and further in view of Suzuki et al. (U.S. Patent No. 5,666,053 A), hereinafter Suzuki.
Regarding claim 10, Nicolopoulos in view of Corbett and Winkelmann as applied to claim 1 discloses the method according to claim 1.
Nicolopoulos in view of Corbett and Winkelmann fails to disclose that the simulated templates generated in step d have a resolution of fewer than 50 pixels for each dimension.
However, Suzuki discloses that the simulated templates generated in step d have a resolution of fewer than 50 pixels for each dimension (column 10, lines 38-51).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Nicolopoulos in view of Corbett and Winkelmann to include that the simulated templates generated in step d have a resolution of fewer than 50 pixels for each dimension, based on the teachings of Suzuki that this saves time during the matching process (Suzuki, column 10, lines 38-51).
Allowable Subject Matter
Claims 6-7 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.
The following is a statement of reasons for the indication of allowable subject matter:
Claim 6 is allowable because the prior art of record fails to teach “generating second simulated templates at the second resolution using the master dataset based upon the selected indexed phase” in combination with the additional limitations of claim 1, upon which claim 6 depends.
The closest prior art of record, Nicolopoulos, teaches the limitations of claim 1 as shown supra. However, Nicolopoulos fails to teach a second resolution at which experimental electron diffraction patterns are obtained, nor at which second simulated templates are generated. Therefore, the prior art of record fails to teach “generating second simulated templates at the second resolution using the master dataset based upon the selected indexed phase” as currently claimed.
Claim 7 is allowable because of its dependence on claim 6.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Nolze (DE Patent No. 102014100765 A1), hereinafter Nolze (English machine translation provided), teaches generating a simulated template at a first resolution lower than a native resolution at which an experimental electron diffraction pattern was originally produced by a detector; and converting the experimental diffraction patterns to the first resolution.
Taheri et al. (U.S. Patent Application Publication No. 2016/0139063 A1), hereinafter Taheri, teaches a method of indexing an electron diffraction pattern obtained from a material having one or more crystalline phases, the method comprising: obtaining a number of experimental electron diffraction patterns from a sample of the material, according to a set of experimental conditions in which an electron beam is incident at a number of locations upon the sample and the electrons scattered from the sample are monitored by a detector.
Buijsse et al. (U.S. Patent Application Publication No. 2022/0317067 A1), hereinafter Buijsse, teaches obtaining the experimental electron diffraction pattern used in step a at a second resolution.
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/A.K./Examiner, Art Unit 2881
/ROBERT H KIM/Supervisory Patent Examiner, Art Unit 2881