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 .
The preliminary amendment filed on November 20, 2023 has been considered.
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 contains more than 150 words.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “charged particle beam optical system” (claim 1) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation
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 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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: a charged particle beam device (claims 17, 22, 23), a charged particle beam optical system (claims 17, 22, 23), an image generation processing unit (claim 17, 22, 23), a storage unit (claims 17, 22, 23), a comparison operation unit (claims 17, 22, 23), a control unit (claims 17, 22, 23).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 17-30 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.
Claims 17, 22, 23, claim limitations a charged particle beam device, a charged particle beam optical system, an image generation processing unit, a storage unit, a comparison operation unit, a control unit invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. There are no corresponding structures for the device, system, and units that are discussed or shown. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35
U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Examiner interprets the device, system, and units are processor(s) or modules that are executed by a processor
Claims 17, 22-24, 29, and 30, the difference between a charge particle beam device and a charge particle beam optical system is misdescriptive. The specification discloses that the charge particle beam device and the charge particle beam optical system
can be the same (see specification, page 8, lines 4-6).
The remaining claims are also rejected under 35 U.S.C. 112(b), for being dependent upon a rejected base claim.
Note Regarding 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.
Pursuant to the 2019 Revised Patent Subject Matter Eligibility Guidance (MPEP 2106), the following analysis is made:
Under step 1 of the Guidance, the claims fall within a statutory category.
Under step 2A, prong 1, claims 17, 22-24, 29, and 30 recite an abstract idea of “determines a shift amount and a shift direction of the focus position of the charged particle beam by comparing information obtained from the image generated by the image generation processing unit and information in the storage unit” (mental process).
Under step 2A, prong 2, the abstract idea is applied in a meaningful way to control the charged particle beam optical system according to a comparison result. Thus, the abstract idea is indicative of integration into a practical application (MPEP 2106.05(e)).
Accordingly, claims 17, 22-24, 29, and 30 and their respective dependent claims 18-21 and 25-28 are patent eligible under 35 USC 101.
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.
Claims 17, 19-24, and 26-30 are rejected under 35 U.S.C. 103 as being unpatentable over Shintani et al. (US 2020/0365364).
Regarding claims 17, 22-24, 29, and 30, Shintani et al. discloses a charged particle beam device and method (Abstract, lines 1-4) comprising:
a charged particle beam optical system that converges/polarizes a charged particle beam and irradiates a sample with the charged particle beam (Abstract, lines 1-4);
an image generation processing unit that generates an image of the sample by detecting the charged particle beam (paragraph 0045, lines 22-26).
While Shintani et al. does not expressly disclose a storage unit that stores a relation between a focus position of the charged particle beam by the charged particle beam optical system and a feature of the image of the sample, Shintani et al. discloses a storage unit (413) that stores control information and image information (paragraph 0045, lines 26-28). Further, Shintani et al. discloses a relation between a focus position (paragraph 0006, lines 8-9) of the charged particle beam by the charged particle beam optical system (at the time of imaging, paragraph 0006, line 9) and a feature of the image of the sample (z_best from one sheet of the image, paragraph 0006, lines 9-10). It would have been obvious to provide Shintani et al. with the storage unit (413) that stores the relation between a focus position (paragraph 0006, lines 8-9) of the charged particle beam by the charged particle beam optical system (at the time of imaging, paragraph 0006, line 9) and a feature of the image of the sample (z_best from one sheet of the image, paragraph 0006, lines 9-10) for controlling imaging (paragraph 0006, lines 5-7).
Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to provide Shintani et al. with the storage unit that stores the relation between a focus position of the charged particle beam by the charged particle beam optical system and a feature of the image of the sample for the purpose of controlling imaging.
While Shintani et al. does not expressly disclose a comparison operation unit that determines a shift amount and a shift direction of the focus position of the charged particle beam by comparing information obtained from the image generated by the image generation processing unit and information in the storage unit, Shintani et al. discloses determining a shift amount and a shift direction of the focus position of the charged particle beam (paragraph 0013, lines 3-7), where shift amount is estimated from best focus position (paragraph 0013, lines 4-5) and shift direction is from sheet /sheets of image, paragraph 0013, lines 5-7). It would have been obvious to determine a shift amount and a shift direction of the focus position of the charged particle beam by comparing information obtained from the image generated by the image generation processing unit and information in the storage unit, since the shift amount is a control information (best focus position, paragraph 0013, lines 4-5) and the shift direction is an image information (shift direction is from sheet /sheets of image, paragraph 0013, lines 5-7). Shintani et al. discloses that the storage unit (413) stores control information and image information (paragraph 0045, lines 26-28).
Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to provide Shintani et al. with comparing information obtained from the image generated by the image generation processing unit and information in the storage unit for the purpose of determining a shift amount and a shift direction of the focus position of the charged particle beam.
While Shintani et al. does not expressly disclose a control unit that controls the charged particle beam optical system according to a comparison result of the comparison operation unit, Shintani et al. discloses determining a shift amount, where shift amount is estimated from best focus position (control information) (paragraph 0013, lines 4-5). Shintani et al. further discloses that the storage unit (413) stores control information (paragraph 0045, lines 26-28). It would have been obvious to use the stored control information by a control unit to control the charged particle beam optical system for focusing.
Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to provide Shintani et al. with stored control information for the purpose of controlling the charged particle beam optical system.
While Shintani et al. does not expressly disclose the storage unit stores information relating to a sharpness difference in the image of the sample for each of the focus position of the charged particle beam as data relating to the feature of the image of the sample, Shintani et al. discloses stores information relating to a sharpness difference in the image of the sample for each of the focus position of the charged particle beam as data relating to the feature of the image of the sample (sharpness is calculated from images and focus position, paragraph 0004, lines 13-15, images relate to focus position paragraph 0004, lines 15-17). Sharpness may control imaging (paragraph 0006, lines 3-5). Shintani et al. further discloses a storage unit (413) that stores control information and image information (paragraph 0045, lines 26-28). It would have been obvious to use the storage unit to store control information for controlling imaging.
Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to provide Shintani et al. with stored control information for the purpose of controlling imaging.
Regarding claims 19 and 26, while Shintani et al. does not expressly disclose the storage unit stores a sharpness difference between an image obtained at one focus position of the charged particle beam and an image obtained at a position shifted from the one focus position by an offset amount as data relating to the features of the image, Shintani et al. discloses a sharpness difference between an image obtained at one focus position of the charged particle beam and an image obtained at a position shifted from the one focus position by an offset amount as data relating to the features of the image (paragraph 0008, lines 1-5). Shintani et al. further discloses a storage unit (413) that stores control information and image information (paragraph 0045, lines 26-28). It would have been obvious to use the storage unit to store control information for controlling focusing/sharpness.
Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to provide Shintani et al. with stored control information for the purpose of controlling focusing/sharpness.
Regarding claims 20 and 27, Shintani et al. discloses calculating a sharpness difference (shifted from optimum focus position, difference between best focus and defocus, paragraph 0008, lines 1-5), which is a difference between a sharpness of an image obtained at one focus position of the charged particle beam and a sharpness of an image obtained at a position shifted from the one focus position by an offset amount (difference between best focus and defocus, paragraph 0008, lines 1-5).
While Shintani et al. does not disclose specifying the shift amount and the shift direction of the focus position of the charged particle beam with reference to the storage unit according to the sharpness, Shintani et al. discloses specifying the shift amount and the shift direction of the focus position of the charged particle beam with reference to the sharpness (adjusting focusing by changing the focus position to adjust the sharpness, paragraph 0008). Shintani et al. further discloses a storage unit that stores control information and image information (paragraph 0045, lines 26-28). Since a sharpness difference can be used to control focus (Shintani, paragraph 0008), it would have been obvious to provide the storage unit to store a reference of sharpness.
Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to provide Shintani et al. with the storage unit for the purpose of storing a reference of sharpness for controlling focus.
Regarding claims 21 and 28, while Shintani et al. does not expressly disclose the storage unit includes data for astigmatism correction of the image as data relating to the feature of the image, Shintani et al. discloses data for astigmatism correction of the image as data relating to the feature of the image (paragraph 0045, lines 15-16). Shintani et al. further discloses that the storage unit (413) stores control information and image information (paragraph 0045, lines 26-28). It would have been obvious to provide the storage unit (413) to store data for astigmatism correction of the image as data relating to the feature of the image.
Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to provide Shintani et al. with the storage unit for the purpose of storing data for astigmatism correction of the image as data relating to the feature of the image.
Claims 18 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Shintani et al. as applied to claims 17 and 24 above, and further in view of Lucas (US 4,251,790).
Regarding claims 18 and 25, Shintani as modified discloses the claimed limitations as discussed above, including a storage unit (Shintani, 413) that stores control information and image information (Shintani, paragraph 0045, lines 26-28).
However, while Shintani as modified does not expressly disclose the sharpness difference is stored as a difference between a sharpness near a center of the image and a sharpness near an edge of the image, Lucas discloses a difference between a sharpness near a center of the image and a sharpness near an edge of the image (column 1, lines 11-16). Since a sharpness difference can be used to control focus (Shintani, paragraph 0008), it would have been obvious to provide the storage unit to store a difference between a sharpness near a center of the image and a sharpness near an edge of the image.
Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to provide Shintani et al. as modified with the storage unit for storing a difference between a sharpness near a center of the image and a sharpness near an edge of the image as suggested by Lucas for the purpose of controlling focus.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael Nghiem whose telephone number is (571) 272-2277. The examiner can normally be reached on M-F.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Schechter can be reached at (571) 272-2302. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/MICHAEL P NGHIEM/Primary Examiner, Art Unit 2857 February 11, 2026