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 Arguments
Applicant's arguments filed 11/24/25 have been fully considered but they are not persuasive.
Applicant argues that the limitation “a number of similar spectral emissions that are required for identification of said [first/second/etc] chemical element” is definite. This is not persuasive. The applicant has provided no standards, objective or otherwise, for determining a number of similar spectral emissions that is required for identification of said a chemical element. The term “required” is dependent on any number of unspecified circumstances, and further, cannot be determined by one of ordinary skill without some sort of context. As such, the indefiniteness rejection of record is maintained.
Applicant argues that the threshold of Tuma cannot anticipate claim 1, because claim 1’s number is “not only ‘used for defining a size of each of a first number of segments’ but also “is related to a number of similar spectral emissions that are required for identification of said first chemical element.” Specifically, applicant asserts that Tuma’s threshold is not so related. This is not persuasive. Tuma’s threshold is clearly used for defining segment size, but it is also related to a number of similar spectral emissions at least in that it exists. Since applicant has declined to offer any objective measure of to a number of similar spectral emissions that are required for identification of said chemical element, a simple binary relation is sufficient to demonstrate the existence of this condition. As such, Tuma at least suggests the claimed limitation
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 1, 4-7 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 1 recites, “wherein said first base spectral number value is related to a number of similar spectral emissions that are required for identification of said first chemical element.” The disclosure provides no standard or objective measures by which such a number required for identification can be ascertained. Rather, the disclosure suggests that the number “may be provided by means of a look-up table.” PgPub para 63. Different practitioners of ordinary skill in the art would arrive at different numbers for “a number of similar spectral emissions that are required for identification of said first chemical element.” Such differences in requirements would arise out of different determination of for different tasks, different precisions of instrumentation, different accuracy, and any number of other circumstances. As such, one of ordinary skill in the art would not be able to determine whether or not he infringed upon the instant claims, because he would not have a way of objectively determining whether or not he chose a “number of similar spectral emissions that are required for identification of said first chemical element.” This issue also arises with respect to “a second base spectral number value” in claim 1 and “a respective further base spectral number value” in claim 4. These limitations create the same issues, and are thus subject to the same rejection with respect to the indefiniteness of limitations regarding what is “required for identification.”
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 4-7 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0057011 A1 [Tuma] in view of US 6,201,240 B1 [Dotan]
Regarding Claim 1:
Tuma discloses a method of examining a sample using a charged particle microscope (abstract), comprising:
providing a charged particle beam and scanning said beam over an area of the sample (abstract);
detecting spectral emissions from the sample in response to the charged particle beam being scanned over the area of the sample (abstract);
identifying a first plurality of substantially similar spectral emissions (Fig. 3 (54a), para 69) and determining a first chemical element associated with said first plurality of substantially similar spectral emissions (paras 27, 37);
providing a first base spectral number value associated with said first determined chemical element, wherein said first base spectral number value is related to a number of similar spectral emissions that are required for identification of said first chemical element (para 71-72 – the number is described as a “threshold”);
dividing at least a part of the scanned area of the sample into a first number of segments associated with said first chemical element, wherein said first base spectral number value is used for defining a size of each of said first number of segments (paras 72-73, Fig. 3);
identifying a second plurality of substantially similar spectral emissions and determining a second chemical element associated with said second plurality of substantially similar spectral emissions (para 69 describing (54b));
providing a second base spectral number value associated with said second determined chemical element, wherein said second base spectral number value is related to a number of similar spectral emissions that are required for identification of said second chemical element (para 71-72 – the number is described as a “threshold”); and
dividing at least a part of the scanned area of the sample into a second number of segments associated with said second chemical element, wherein said second base spectral number value is used for defining a size of each of said second number of segments (paras 72-73, Fig. 3), wherein said second base spectral number value differs from said first base spectral number value, and said size of each of said second number of segments differs from said size of each of said first number of segments (note in Fig. 3 the different numbers of 54a and 54b and the associated different number of segments associated therewith); and
providing a graphical representation of the sample (Fig. 3).
However, Tuma fails to teach that said graphical representation includes said first chemical element and corresponding segments and said second chemical element and corresponding segments. Dotan is directed to a system for enhancing SEM images. Abstract. Dohan teaches that a user can control the display of images such that various image can be displayed together. 8:16-22. It would have been obvious to one of ordinary skill before the effective time of filing to use the multiple image displaying technology described by Dotan to display both the first chemical element and corresponding segments and the second chemical element and corresponding segments of Tuma. One would have been motivated to make such a modification since it would allow one to see two results at the same time.
Regarding Claim 4:
The above modified invention teaches teaches the method according to claim 1, further comprising:
identifying at least one further plurality of substantially similar spectral emissions and determining a further chemical element associated with said further plurality of substantially similar spectral emissions (Tuma para 69 describing (54b));
providing, for each of the at least one further chemical elements, a respective further base spectral number value associated with said respective further determined chemical element, wherein said respective further base spectral number value is related to a number of similar spectral emissions that are required for identification of said respective further chemical element (Tuma para 71-72 – the number is described as a “threshold”); and
dividing at least a part of the scanned area of the sample into a corresponding set of further number of segments, each set associated with a respective further chemical element, wherein said further base spectral number value is used for defining a size of each of said corresponding further number of segments (Tuma paras 72-73, Fig. 3).
Regarding Claim 5:
The above modified invention teaches teaches the method of claim 1, further comprising the step of updating and/or modifying at least one segment in response to the beam being scanned over the sample (Tuma para 72 – “as more points are acquired” is a reference to further scanning providing more data points, which are in turned used to update the segmentation as shown in Fig. 3).
Regarding Claim 6:
The above modified invention teaches a charged particle microscope for examining a sample, comprising:
an optics column (Fig. 1), including a charged particle source (Tuma Fig. 1 (4)), a final probe forming lens (Tuma Fig. 1 (6)) and a scanner (Fig. 1 (8)), for focusing a beam of charged particles emitted from said charged particle source onto a sample (Tuma para 56);
a sample stage positioned downstream of said final probe forming lens and arranged for holding said sample (Tuma Fig. 1 (S), para 46);
a first detector for detecting emissions of a first type originating from said sample in response to the incidence of charged particles emitted from said charged particle source (Tuma Fig. 1 (22)); and
a control unit and a processing device connected to said first detector (Tuma Fig. 1 (20));
wherein said charged particle microscope is arranged for executing the method of claim 1 (since the microscope of Tuma has identical structure to the claimed microscope, it must inherently also have the same physical arrangement for executing the method.).
Regarding Claim 7:
The above modified invention teaches the method of claim 1, wherein the first base spectral number value and the second base spectral number value are provided by means of a look-up table. Dotan uses a look-up table to provide spectral information (4:62-5;6) since it is “an easy and fast method of obtaining material information.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2018/0328905 A1 appears highly relevant to the instant invention.
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 WYATT A STOFFA whose telephone number is (571)270-1782. The examiner can normally be reached M-F 0700-1600 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ROBERT KIM can be reached at 571 272 2293. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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WYATT STOFFA
Primary Examiner
Art Unit 2881
/WYATT A STOFFA/ Primary Examiner, Art Unit 2881
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