DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Claim(s) 1-15 is/are pending.
Claim(s) 1-15 is/are rejected.
Claim Rejections – 35 U.S.C. § 101
35 U.S.C. 101 reads as follows:
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Claim(s) 15 is/are rejected under 35 U.S.C. § 101.
Claims 15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. Claim 15 recites “one or more computer readable media”. The broadest reasonable interpretation of claim 15 includes non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer storage media. See In re Nuijiten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007).
It is noted that a claim drawn to such a computer readable medium that covers both transitory and non-transitory embodiments may be amended to narrow the claim to cover only statutory embodiments to avoid a rejection under by adding the limitation "non-transitory" to the claim.
Claim Rejections – 35 U.S.C. § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
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The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
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Claim(s) 11 is/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 pre-AIA the applicant regards as the invention.
Regarding claim 11, the phrase “preferably by” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections – 35 U.S.C. § 112 (a)
The following is a quotation of the first paragraph of 35 U.S.C. § 112(a):
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The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. § 112:
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Claim(s) 1-15 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 fails to meet the written description requirement for requiring “using image processing techniques”.
MPEP 2163.03(IV) recites
While there is a presumption that an adequate written description of the claimed invention is present in the specification as filed. In re Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976), a question as to whether a specification provides an adequate written description may arise in the context of an original claim. An original claim may lack written description support when (1) the claim defines the invention in functional language specifying a desired result but the disclosure fails to sufficiently identify how the function is performed or the result is achieved.
MPEP 2163.05(g) recites
Further, without reciting the particular structure, materials or steps that accomplish the function or achieve the result, all means or methods of resolving the problem may be encompassed by the claim. Ariad Pharmaceuticals., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1353, 94 USPQ2d 1161, 1173 (Fed. Cir. 2010) (en banc). See also Datamize LLC v. Plumtree Software Inc., 417 F.3d 1342, 75 USPQ2d 1801 (Fed. Cir. 2005) where a claim directed to a software based system for creating a customized computer interface screen recited that the screen be "aesthetically pleasing," which is an intended result and does not provide a clear cut indication of scope because it imposed no structural limits on the screen. Unlimited functional claim limitations that extend to all means or methods of resolving a problem may not be adequately supported by the written description or may not be commensurate in scope with the enabling disclosure, both of which are required by 35 U.S.C. 112(a) and pre-AIA 35 U.S.C. 112, first paragraph. In re Hyatt, 708 F.2d 712, 714, 218 USPQ 195, 197 (Fed. Cir. 1983); Ariad, 598 F.3d at 1340, 94 USPQ2d at 1167. For instance, a single means claim covering every conceivable means for achieving the stated result was held to be invalid under 35 U.S.C. 112, first paragraph because the court recognized that the specification, which disclosed only those means known to the inventor, was not commensurate in scope with the claim.
Here, the claim requires the desired result of “using image processing techniques to identify an apparent shift between an expected position of the target location in the calibration image and an observed position of the target location in the calibration image”. The specification states “This measurement may be performed using image processing techniques, e.g., feature tracking, optical flow, feature recognition, or image registration” ([0330] of the published application). However, the claim language covers all types of image processing techniques (including those practiced in the mind). This amounts to a desired result without disclosure as to how the result is achieved, as well as improper unlimited functional claiming.
Because the specification is devoid of steps, prose, flow charts, algorithm, equation to what the non-linear model is, claim 1 fails to meet the written description requirement.
Claim 1 fails to meet the written description requirement for requiring “training a non-linear model”.
MPEP 2161.01(I) recites
Similarly, original claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP §§ 2163.02 and 2181, subsection IV.
Here, the claim requires the desired result of training non-linear models and performing actions based on the non-linear models. However, the specification states ‘Here, the term “non-linear” is to be understood in the sense “not necessarily linear”’ ([0106] of the published application). Thus the claim language is broad enough to read on all trainable models (e.g. fitting coefficients to an equation having linear and/or higher order variables). It may also read on fitting to disjointed linear models and composite models. It is also broad enough to read on all non-linear machine learning models (e.g. non-linear regression algorithms, K-nearest neighbors models, support vector machines, etc), which are not all described in the specification. Thus the claim language covers all types of non-linear models (including those practiced in the mind).
The instant specification only discloses that the result is achieved (e.g. [0106] of the published application), however does not disclose any algorithm as to how the non-linear model is implemented or what the model is. This amounts to a desired result without disclosure as to how the result is achieved, as well as improper unlimited functional claiming.
Because the specification is devoid of steps, prose, flow charts, algorithm, equation to training the non-linear model, claim 1 fails to meet the written description requirement.
Claims 4-5 fail to meet the written description requirement for requiring “determining whether the non-linear model is still valid”.
The specification recites “…Determining whether model is still valid may comprise determining whether each model component is still valid. Updating the non-linear model may comprise updating model components that are determined not to be still valid and retaining model components that are determined to be still valid, without any update. Advantageously, updating the model selectively in this way may be more efficient and may result in a more reliable model.” ([0172] of the published application). “Determining whether the model is still valid based on one or more predetermined criteria may comprise assessing whether the optical settings have changed compared to the optical settings during acquisition of the images used to fit the current model. The assessment may further be based on prior knowledge on the current grid square as compared to the grid square on which the current model was fit. For example, this prior knowledge may include an estimate of height deviation, level of contamination, cracks, etc. The assessment may further be based on the time since the last calibration, a total drift estimation, or a combination thereof.” ([0173] of the published application).
The instant specification only discloses that the result is achieved (determining that the non-linear model is still valid or not), however does not disclose any evaluation criteria, thresholds, algorithms, etc, as to how the determination is made, or even (as discussed above) as to what the non-linear model is. This amounts to a desired result without disclosure as to how the result is achieved, as well as improper unlimited functional claiming.
Because the specification is devoid of steps, prose, flow charts, algorithm, equation to determining validity of the non-linear model, claim 1 fails to meet the written description requirement.
Claim 6 fails to meet the written description requirement for requiring “the first plurality of target locations are selected such that the target locations and identified apparent shifts are sufficient for training the non-linear model, such that the non-linear model is accurate at the second plurality of target locations”.
The instant specification only discloses that the result is achieved (see claim 6, [0174] of the published application), however is devoid of any conditional details as to how the plurality of target positions are selected.
Because the specification is devoid of steps, prose, flow charts, algorithm, equation to select the plurality of target locations, claim 1 fails to meet the written description requirement.
Claim 12 fails to meet the written description requirement for requiring “determining the expected position of the feature in the calibration image, using a steering model”.
The instant specification describes, for instance, “Rather than using the same linear steering model (which we know results in targeting errors) and steering the image to a corrected location to account for the anticipated error, the steering model could be updated to account for the non-linear behaviour and the beam could be steered to the target locations using the corrected model. In other words, the non-linear targeting model could be incorporated into the steering model. Whilst the non-linear model is recalibrated as described above, the linear steering model may remain the same. This may be because the linear steering model is based on physical properties of the microscope that do not change.” ([0191] of the published application).
For similar reasons discussed above regarding the training and use of the non-linear model, the instant specification only discloses that the result is achieved, and does not disclose any algorithm as to what or how the steering model is implement or what it is. Further, the specification only discloses determination without disclosing how such a determination is done using the steering model. This amounts to a desired result without disclosure as to how the result is achieved, as well as improper unlimited functional claiming.
Because the specification is devoid of steps, prose, flow charts, algorithm, equation to implement a particular steering model and determine expected position using said steering model, claim 1 fails to meet the written description requirement.
Applicant is reminded that "It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See, e.g., Vasudevan Software, Inc. V. MicroStrategy, Inc., 782 F.3d 671, 681-683, 114 USPQ2d 1349, 1356, 1357 (Fed. Cir. 2015)"
Claims 2-15 are rejected due to their dependency from claim 1.
Claim Rejections – 35 U.S.C. § 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:
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Claim(s) 1-12, 14-15 is/are rejected under 35 U.S.C. § 103 as being unpatentable over Tiemeijer et al. (US 20100072366 A1) [hereinafter Tiemeijer].
Regarding claim 1, Tiemeijer teaches a method of automated data acquisition for a transmission electron microscope, the method comprising:
obtaining a reference image of a sample (see e.g. fig 2a, diaphragm plate) at a first magnification (see fig 4: 401, [0068]);
for each of a first plurality of target locations (e.g. fig 2a: structures, 203) identified in the reference image (required for operation of system, see [0073]):
steering an electron beam of the transmission electron microscope to the target location (required for operation of imaging the pattern, see fig 2a),
obtaining a calibration image of the sample at a second magnification greater than the first magnification (see more settings, 406, [0068-69]), and
using image processing techniques (e.g. [0071]) to identify an apparent shift between an expected position of the target location in the calibration image and an observed position of the target location in the calibration image (see correction to position, [0071-73]);
training a non-linear
based on the non-linear model, calculating a calibrated target location for a next target location (e.g. calculating corrected actual target location on a specimen to be imaged next, see fig 4: 410); and
steering the electron beam to the calibrated target location and obtaining an image (e.g. at the specimen to be imaged) at a third magnification greater than the first magnification (e.g. at a further magnification or second magnification, see more settings, 406, [0068-69]).
Tiemeijer may fail to explicitly disclose a third magnification greater than the first magnification. However, given the teaching that multiple magnifications can be utilized (see e.g. [0038,41,68]), it would have been obvious to a person having ordinary skill in the art at the time the application was effectively filed to perform calibration for multiple magnification settings, including a third magnification level greater than the first magnification, to enable the ability to provide imaging settings for a wider range of specimen imaging at different magnification levels.
Regarding claim 2, Tiemeijer may fail to explicitly disclose ordering the first plurality of target locations such that a magnitude of each target location increases from start to end; and/or ordering the first plurality of target locations such that an angle of the target location changes smoothly from start to end, wherein, for each of the first plurality of target locations identified in the reference image, the method further comprises calculating a calibrated target location, based on the non-linear model, wherein steering the electron beam to the target location comprises inputting the calibrated target location into a beam steering process, and wherein, the method further comprises updating the non-linear model after identifying each apparent shift, based on the calibrated target location and the corresponding apparent shift. However, Tiemeijer teaches that the target locations may be formed in a variety of shapes and sizes (see e.g. Tiemeijer, [0060,64]), and it would have been obvious to a person having ordinary skill in the art at the time the application was effectively filed to form the shapes in at least one part of the system such that some magnitude of each target location increases from start to end, in order of magnitude (e.g. size of dimensions to accommodate increasing or decreasing magnification), for example by providing a standard calibration pattern increasing in size like a ruler in at least one dimension. It is noted it has been held that a mere rearrangement of element without modification of the operation of the device would involve only routine skill in the art as a design choice. See MPEP 2144.04; In re Japiske, 86 USPQ 70 (CCPA 1950). See MPEP 2144.04; In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
Regarding claim 3, Tiemeijer teaches the next target location is one of a second plurality of target locations (see repeating over locations on specimen, Tiemeijer, fig 4: 410, [0070]) and the method comprises, for each of the second plurality of target locations: calculating a calibrated target location (see [0070]), based on the non-linear model (see [0070]), steering the electron beam to the calibrated target location (see [0070]; alternately note required for scanning over a larger specimen), and obtaining an image of the sample at the third magnification (see [0070]).
Regarding claim 4, Tiemeijer teaches for each of the second plurality of target locations: if recalibration is required (e.g. after column is overhauled, [0070]), obtaining an image of the sample at the second magnification (see e.g. 400, [0068-71]), using image processing techniques to identify an apparent shift between an expected position of the target location in the image and an observed position of the target location in the image (see same), updating the non-linear model based on the apparent shift (see same). Tiemeijer may fail to explicitly disclose determining whether the non-linear model is still valid, based on one or more predetermined criteria. However, it was well known in the art at the time the application was effectively filed to perform system error detection, and it would have been obvious to restart the system in an error state if it determines the memory file for the settings it is trying to access is missing, corrupted, etc.
Regarding claim 5, Tiemeijer teaches for each of the second plurality of target locations: if recalibration is required, using image processing techniques to identify an apparent shift between an expected position and an observed position of the an immediately preceding target location (see Tiemeijer, [0068-70]) from the second plurality of target locations in the corresponding image (redefining as locations on fig 2a) obtained at the third magnification (redefining as at different magnifications, see [0070]), updating the non-linear model (updating settings for model for operational parameters and movement) based on the calibrated target location and the corresponding apparent shift (see [0070]). Tiemeijer may fail to explicitly disclose determining whether the non-linear model is still valid, based on one or more predetermined criteria. However, it was well known in the art at the time the application was effectively filed to perform system error detection, and it would have been obvious to restart the system in an error state if it determines the memory file for the settings it is trying to access is missing, corrupted, etc.
Regarding claim 6, Tiemeijer teaches the first plurality of target locations are selected such that the target locations and identified apparent shifts are sufficient for training the non-linear model (required for effective operation of the system), such that the non-linear model is accurate at the second plurality of target locations (required to effectively operate the system).
Regarding claim 7, Tiemeijer teaches a third plurality of target locations that are of interest in the reference image (see e.g. Tiemeijer, fig 2a, [0063-64]); and selecting the first plurality of target locations as a subset of the third plurality of target locations (system selects ranges of structures based on desired magnification level, see [0060]). Tiemeijer may fail to explicitly disclose identifying the third plurality of target locations. However, given the teaching that patterns of different structure size are being utilized for different magnification imaging (see [0060]), some kind of identification of the appropriate sized subset of identified structures would have been required for the intended operation of settings determination utilizing said appropriate subset. It would have been obvious to a person having ordinary skill in the art at the time the application was effectively filed to select from the imaged targets to form the first plurality of target locations, and/or constructively define the third target locations as a superset of the first target locations.
Regarding claim 8, Tiemeijer teaches wherein, for each of the first plurality of target locations, the next target location, the second plurality of target locations and/or the third plurality of target locations: the sample comprises one or more features suitable for image registration in proximity to each target location, such that one or more of the features are visible in an image obtained at the target location (required for intended operation of system, see Tiemeijer, e.g. fig 2a, fig 4, [0068-71]), and/or each target location is located within a threshold distance from an optical axis of the microscope, such that the target location is reachable by image shift.
Regarding claim 9, Tiemeijer teaches obtaining a second reference image of the sample at the first magnification (see e.g. at same magnification and different energies, see e.g. Tiemeijer, [0041,68]); and identifying a second plurality of target locations in the second reference image (required for operation of system, see fig 4: 400).
Regarding claim 10, Tiemeijer teaches the non- linear model is configured to estimate an apparent shift (distortions, see generally Tiemeijer, fig 3) of a feature of the sample in an image obtained by steering the electron beam to the target location (by scanning, see e.g. [0033]).
Regarding claim 11, Tiemeijer teaches steering the electron beam comprises adjusting a tilt and/or shift of the electron beam (see scanning, Tiemeijer, [0033]), preferably by: adjusting the incident electron beam, and/or adjusting the transmitted electron beam.
Regarding claim 12, Tiemeijer teaches wherein using image processing techniques to identify an apparent shift between the expected position of the target location in the calibration image and the observed position of the target location in the calibration image comprises: determining the expected position of the feature in the calibration image, using a steering model (see e.g. Tiemeijer, [0071], which depends on where the beam is steered, see fig 3); identifying the feature in the calibration image at an observed position (required for operation of system, see e.g. [0068], figs 4-5); and determining the apparent shift as the difference a difference between the expected position and the observed position (see [0071-73]).
Regarding claim 14, Tiemeijer teaches a transmission electron microscope apparatus configured to perform the method of claim 1 (see Tiemeijer, fig 1).
Regarding claim 15, Tiemeijer teaches one or more computer-readable media containing thereon processor-executable instructions operable to perform the method of claim 1 (required for intended operation of system, see Tiemeijer, claim 15).
Claim(s) 13 is/are rejected under 35 U.S.C. § 103 as being unpatentable over Tiemeijer, as applied to claim 1 above, and further in view of Slijuterman et al. (US 20200118788 A1) [hereinafter Slijuterman].
Regarding claim 13, Tiemeijer may fail to explicitly disclose obtaining a defocus measurement for one or more calibration images; and updating the non-linear model based on the defocus measurement. Tiemeijer teaches generally correcting for aberrations (see Tiemeijer, [0061]). However, the use of defocus correction was well known in the art at the time the application was effectively filed. For example, Slijuterman teaches correcting for defocus errors (see Slijuterman, abstract) using a system comprising obtaining a defocus measurement for one or more calibration images (e.g. [0031], abstract); and updating the model based on the defocus measurement (required for intended operation of the system). It would have been obvious to a person having ordinary skill in the art at the time the application was effectively filed to combine the teachings of Slijuterman in the system of the prior art because a skilled artisan would have been motivated to look for ways to enable the intended and known operation of correcting for defocus, in the manner taught by Slijuterman.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James Choi whose telephone number is (571) 272 – 2689. The examiner can normally be reached on 9:30 am – 6:00 pm M-F.
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/JAMES CHOI/Examiner, Art Unit 2881