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. Specification Applicant is reminded of the proper language and format for an abstract of the disclosure. The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details. The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided. The abstract of the disclosure is objected to because the language “ This invention refers to” should be deleted. The abstract should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. 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 § 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. Claim 20 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because claim 20 recites “a computer program having instructions for causing a computer system to perform the method steps of claim 6 when the computer system executes the computer program .” The claim recites a computer program embodying functional descriptive material that does not have a physical or tangible form and therefore does not fall within any statutory category (see MPEP 2106.03). The scope of the presently claimed invention encompasses products that are not necessarily computer readable and thus are unable to impart any functionality of the recited program. To overcome this rejection, the claim should be amended to embody the program within a statutory category by adding a non-transitory computer-readable medium to the claim. Thus, claim 20 is rejected as being directed to non-statutory subject matter. 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. Claims 14-16 are 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 14 recites “ The method of claim 13, further comprising the step of determining the surface contour deformation of the optical element after writing the first pixel layer of the at least one pixel arrangement .” There is no antecedent basis for “ the first pixel layer”. The claim as written is indefinite and unclear. Applicant has failed to provide a numerical set of layers , e.g. a first and second pixel layer. Examiner suggests amending the claim to recite “ the first pixel layer of the at least two pixel layers” . Claim 15 recites “ The method of claim 14, further comprising the step of adapting the at least one second pixel layer of the least one pixel arrangement to the determined surface contour deformation .” There is no antecedent basis for “ the at least one second pixel layer ”. The claim as written is indefinite and unclear. Applicant has failed to provide a numerical set of layers , e.g. a first and second pixel layer. Examiner suggests amending the claim to recite “ the second pixel layer of the at least two pixel layers” . Claim 16 recites “ The method of claim 15, wherein adapting the at least one pixel arrangement to the determined surface contour deformation comprises adapting at least one of: a pixel type, a two-dimensional pixel density, the writing depth of the least one second layer of the pixel arrangemen t introducing and/or adapting a substructure of the at least one second pixel layer , or a size of the least one second pixel layer of the at least one pixel arrangement .” There is no antecedent basis for “ the at least one second pixel layer”. The claim as written is indefinite and unclear. Applicant has failed to provide a numerical set of layers , e.g. a first and second pixel layer. Examiner suggests amending the claim to recite “ the second pixel layer of the at least two pixel layers or the second pixel layer ” . Claim Interpretation The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked. As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph: (A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and (C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function. Claim s 18 and 19 limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. 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. The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claim(s) 1-5 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Dmitriev (US 2012/0084044 A1) in view of Bret et al. (DE 102010025033 A1). Regarding claims 1-5 and 18, Dmitriev discloses a method for determining a laser beam parameter of at least one pixel writing map written into an optical element (110) used in a lithographic process form a surface contour deformation of the optical element of the optical element( see abstract, claims, [0062-0079] and figs. 2-6), the method comprising the steps: a. determining a surface contour deformation induced by the at least one pixel writing map into the optical element ( [0073], fig. 3); b. simulating at least two surface contour deformations of the at least one pixel writing map for at least two different writing depths ([0069-0071 & 0079 and fig. 4), and c. determining the laser beam parameter of the least one pixel writing map by comparing the determined surface contour deformation with the at least two simulated surface contour deformations ([0069-0071 and 0075-0079] & figs. 4-6). Dmitriev disclose a method where determining the deformation comprises the steps of comparing the deformation before and after the writing of the pixel map into the optical element [0073-0074 & fig. 3], where the pixel writing map is adapted to an expected writing depth [0072], simulating the deformation comprises a 3D model [0075] and the method further comprises the determination of tool specific parameters [0064]. For the purpose of clarity, the method claim 1 also is unpatentable and provide the means for apparatus claim 18 as rejected above as being unpatentable by Dmitriev , and the method claim 1 is taught/suggested by the functions shown/stated/set forth with regards to the apparatus claims 18 as rejected above as being unpatentable by Dmitriev. Further regards to the claims , Dmitriev fails to explicitly disclose that the known method in that the laser beam parameter is a writing depth as instantly claimed. However, Dmitriev recognizes that the model used is used for simulating the displacements caused by writing a pixel map into the optical element is two-dimensional and indicate that a 3D model would be able to capture more of the induced deformations of the optical element ( [0072 ] and figs. 2 and 3). Nonetheless, the examiner has added Bret et al. to teach it is well-known to one of ordinary skilled in the art to have a 3D model for simulating surface deformations including the writing depth as a laser beam parameter( see abstract, [0035-0047] & figs. 1-3). Therefore, it would have been obvious at the time of the invention to integrate the determination of the writing depth as a laser beam parameter as taught by Bret et al. into the method of Dmitriev in order to solve the problem posed without any undue experimentation and inventive activity. Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention. Claim(s) 6-12 and 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bret et al. (DE 102010025033 A1). Regarding claims 6-12 and 19, Bret et al. disclose a method for optimizing a defect correction of an optical element used in a lithographic process ([0034-0048] & figs. 1-3), the method comprising the steps: a. determining whether the optical element has at least one defect ([0035-0041] & figs. 1-3); b. determining whether the optical element has at least one surface contour deformation ([0035-0041] & figs. 1-3); and c. determining at least one pixel arrangement for writing into the optical element based on whether at least one defect has been determined and on whether at least one surface contour deformation has been determined, the at least one pixel arrangement correcting the at least one defect, the at least one surface contour deformation or both ( [0042-0047]). Bret et al. teach a method comprising the steps of writing a pixel arrangement into the optical element [0043], while simultaneously correcting a defect and a surface deformation [0042-0047], measuring defect and deformation data [0035-0041 and figs 1-3], using an interferometer [0035], determining a writing depth of the pixel arrangement [0047], using a 3D model [0046] and adapting the depth of the pixel arrangement [0043 & 0047]. For the purpose of clarity, the method claim 6 also is anticipates and provide the means for apparatus claim 1 9 as rejected above as being unpatentable by Bret et al. , and the method claim 6 is taught/suggested by the functions shown/stated/set forth with regards to the apparatus claims 1 9 as rejected above as being anticipated by Bret et al. Regarding claim 20, Bret et al. teach a computer program having instructions for causing a computer system to perform any of the method steps of claim 6 when the computer system executes the computer program [0024 and 0046-0048]. Claim(s) 17 is rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Bret et al. (DE 102010025033 A1). Regarding claim 17, Bret et al. teach an optical element ([0034] & fig. 1). Claim 17 is a product-by-process claim. Applicant is reminded of MPEP 2113: "[E] ven though product-by-process claims are limited by and defined by the process; determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Claim(s) 13 is rejected under 35 U.S.C. 103 as being unpatentable over Bret et al. (DE 102010025033 A1) as applied to claim 6 above, and further in view of Dmitriev et al. (US 2020/0124959 A1). Regarding claim 13, Bret et al. do not explicitly recite where in the at least one pixel arrangement at least two pixel layers written into different depths as instantly claimed. However, Dmitriev et al. teach it is well-known to one of ordinary skilled in the art to include two pixel layers in the at least one pixel arrangement [0023]. Therefore, it would have been obvious to one of ordinary skilled in the art at the time of the invention to include pixel arrangements in two layers as taught by Dmitriev et al. into the method of Bret et al. in view of improving the flexibility of the repair process. Claim(s) 14-1 6 are rejected under 35 U.S.C. 103 as being unpatentable over Bret et al. (DE 102010025033 A1) in view of Dmitriev et al. (US 2020/0124959 A1) as applied to claim 13 above, and further in view of Scherubl et al. (US 2010/0254591 A1). Regarding claims 14-1 6 , neither Bret et al. nor Dmitriev et al . explicitly recite a step of determining the surface contour deformation of the optical element after writing the first pixel layer of the at least one pixel arrangement and/or a step of adapting the at least one second pixel layer to determined surface contour deformation as instantly claimed in claims 14 and 15 . However, Scherubl et al . teach it is well-known to one of ordinary skilled in the art to include a step of determining the surface contour deformation of the optical element after writing the first pixel layer of the at least one pixel arrangement and/or a step of adapting the at least one second pixel layer to determined surface contour deformation [002 5-0026 & fig. 1 ]. Therefore, it would have been obvious to one of ordinary skilled in the art at the time of the invention to include of an iterative repair process of determining a repair deviation and an adaption step of the following repair iteration as taught by Scherubl et al. into the method of Bret et al. in view of improving the accuracy of the repair process. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to FILLIN "Examiner name" \* MERGEFORMAT CHANCEITY N ROBINSON whose telephone number is FILLIN "Phone number" \* MERGEFORMAT (571)270-3786 . The examiner can normally be reached FILLIN "Work Schedule?" \* MERGEFORMAT Monday-Friday (8:00 am-6:00 pm; IFP; PHP) . Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, FILLIN "SPE Name?" \* MERGEFORMAT Mark Huff can be reached at FILLIN "SPE Phone?" \* MERGEFORMAT 571-272-1385 . The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /CHANCEITY N ROBINSON/ Primary Examiner, Art Unit 1737