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 .
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 1-6 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 the number of similar spectral emissions that are required for confidently determining said first chemical element.” The disclosure provides no standard by which such a number required for confident determination can be ascertained. Rather, the disclosure suggests that the number “may be provided by means of a look-up table.” PgPub para 63. As such, the term “confident” is interpreted in accordance with its ordinary meaning to mean a degree of certainty. However, different practitioners of ordinary skill in the art would arrive at different numbers for “the number of similar spectral emissions that are required for confidently determining said first chemical element.” Such differences would arise out of different confidence levels required for different tasks, different precisions of instrumentation, different accuracy requirements, 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 confidently determining said first chemical element.” It is further noted that “the number of similar spectral emissions” appears to lack proper antecedent basis. Claims 2 and 4 repeat this issue and are subject to the same rejection with respect to the similar recitations regarding “the second base spectral number value” and “said respective further base spectral number value.”
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.
Claims 1-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2020/0057011 A1 [Tuma].
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 the number of similar spectral emissions that are required for confidently determining 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); and
providing a graphical representation of the sample, wherein said graphical representation includes said first chemical element and corresponding segments (Fig. 3).
Regarding Claim 2:
Tuma discloses the method of claim 1, further comprising:
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 the number of similar spectral emissions that are required for confidently determining 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).
Regarding Claim 3:
Tuma discloses the method of claim 2, 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).
Regarding Claim 4:
Tuma discloses 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 (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 the number of similar spectral emissions that are required for confidently determining said respective further 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 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 (paras 72-73, Fig. 3).
Regarding Claim 5:
Tuma discloses 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 (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:
Tuma discloses a charged particle microscope for examining a sample, comprising:
an optics column (Fig. 1), including a charged particle source (Fig. 1 (4)), a final probe forming lens (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 (para 56);
a sample stage positioned downstream of said final probe forming lens and arranged for holding said sample (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 (Fig. 1 (22)); and
a control unit and a processing device connected to said first detector (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.).
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.
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