DETAILED ACTION
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 6, 8, 10, 15-21, and 28-33 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 11,079,687 in view of Van Wingerden et al. [US 2006/0206851]. The subject matter of claims 1-4, 6, 8, 10, and 15-21, and 28-33 of the application are anticipated by or broader than the subject matter of claims 1-4, 6, 8, 10, 15, and 16 of the Patent.
The Patent does not claim a determined multidimensional process window and physically configuring or physically modifying an electronic device manufacturing process based on the process window and/or outputting a signal representing, or based on, the process window to a tool or system for enabling physical configuration or physical modification of the device manufacturing process.
Van Wingerden teaches a determined multidimensional process window (Figs. 8a and 8b) and physically configuring or physically modifying an electronic device manufacturing process based on the process window and/or outputting a signal representing, or based on, the process window to a tool or system for enabling physical configuration or physical modification of the device manufacturing process (see [0117]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date to provide the subject matter taught by Van Wingerden in the claimed features of the ‘687 Patent in order to ensure the process or tool is operating with defined parameters to successfully manufacture an operable device.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 17 and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Plihal [US 2016/0274036].
For claims 17 and 21, Plihal teaches a non-transitory computer-readable medium (400, see Fig. 4) comprising instructions therein, the instructions, when executed by a computer system, configured to cause the computer system to at least perform a method comprising: determining, by a hardware computer system (see Fig. 4), a multi-dimensional process window (focus exposure dose process window, see [0065]) for a certain feature of a plurality of features of pattern based on a failure rate of the feature (failure rate of a design structure, see [0066], or failure type, see [0084], of a plurality of unique design structures for each bin, see [0006], or a plurality of failures, see[0084], failure rate used to identify process window edge, see [0070]-[0073] and [0082]-[0083]); and physically configuring or physically modifying an electronic device manufacturing process based on the process window and/or outputting a signal representing, or based on, the process window to a tool or system for enabling physical configuration or physical modification of the device manufacturing process (process window used to decide optimal parameters of a lithography process, see [0006]).
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 18, 20, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Plihal in view of Van Wingerden et al. [US 2006/0206851].
For claims 18 and 28, Plihal teaches determining the process window based on the failure rate (see prior art rejection of claim 17 above), but fails to teach the determining the process window comprises: obtaining a probability density function of a parameter of the feature for a setting of a process variable of a patterning process used to generate the feature; and determining the process window based on the probability density function.
Van Wingerden teaches obtaining a probability density function of a parameter of the feature for a setting of a process variable of a patterning process used to generate the feature; and determining the process window based on the probability density function (determining the process latitude for dose and focus based on CD distribution associated with variation in process variables, see [0096]-[0115]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the process window determination as taught by Van Wingerden in the determination of a process window as taught by Plihal in order to optimize the process latitude in order to increase the likelihood of manufacturing an operable device.
For claim 20, Plihal fails to teach the configuring or modifying the device manufacturing process based on the process window and/or outputting a signal representing, or based on, the process window to a tool or system for enabling configuration or modification of the device manufacturing process comprises an optical proximity correction and/or optimization of a resist thickness or type of the patterning process .
Van Wingerden teaches configuring or modifying the device manufacturing process based on the process window and/or outputting a signal representing, or based on, the process window to a tool or system for enabling configuration or modification of the device manufacturing process comprises an optical proximity correction and/or optimization of a resist thickness or type of the patterning process (optimizing mask features of exposure, see [0116] and [0117]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the mask or processing type as taught by Van Wingerden in the process windows optimization process as taught by Plihal in order to ensure quality and accuracy of pattern transfer.
Allowable Subject Matter
Claims 1-4, 6, 8, 10, 15, 16, and 30-33 would be allowable if rewritten or amended to overcome the non-statutory obvious-type double patenting rejection set forth in this Office action or a reply with terminal disclaimer accompanied by a reply requesting reconsideration.
Claims 19 and 29 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: The previously cited prior art fails to teach alone or in combination the subject matter including “iv) measurements of a failure rate of the feature, and (v) a probability density function of the process variable for a setting of the process variable; converting, by a hardware computer system, the probability density function of the process variable for the setting to a probability density function of the parameter for the setting based on a conversion function, wherein the conversion function is determined based on the function of the process variable; determining, by the hardware computer system, a process window based on the probability density function of the parameter for the setting and the measurements of the failure rate of the feature” as recited in claim 1 and similarly recited 16, and “the obtaining the probability density function of the parameter comprises converting a probability density function of the process variable for the setting to the probability density function based on a conversion function, wherein the conversion function is determined based on a function of the process variable” as recited in claim19 and similarly recited in claim 29. Claims 2-4, 6, 8, 10, 15, and 30-33 depend therefrom.
Response to Arguments
Applicant’s arguments, see pages 8-12 of the Remarks filed on June 1, 2026, with respect to subject matter eligibility have been fully considered and are persuasive. The previous rejection under 35 U.S.C. 101 has been withdrawn.
Applicant’s arguments with respect to claims 17 and 21 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. Plihal is relied upon to teach the salient features.
Conclusion
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 Steven H Whitesell whose telephone number is (571)270-3942. The examiner can normally be reached Mon - Fri 9:00 AM - 5:30 PM (MST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curt Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Steven H Whitesell/Primary Examiner, Art Unit 1759
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