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 Amendment
The amendments filed 08/21/2026 have been entered. Claims 2 and 10 have been canceled. Claims 1, 3-9, 11-14 remain pending in the application.
Response to Arguments
Applicant’s amendments to the specification have overcome each and every objection previously set forth in the Non-Final Office Action dated 05/21/2026, hereinafter NFOA0521.
Applicant’s amendments to the claims have overcome each and every objection and 35 U.S.C. 112(b) rejection previously set forth in NFOA0521.
Applicant's arguments filed 08/21/2026 regarding the previously presented 35 U.S.C. 101 rejection have been fully considered but they are not moot in view of applicant’s amendments to the claims. However, the amended claims suffer from 35 U.S.C. 101 issues. See below for detailed discussion.
Applicant’s arguments, see Remarks (see p. 4-5), filed 08/21/2026, with respect to amended claim 1 regarding the previously presented prior art rejection in view of Hitomi, have been fully considered and are persuasive. The previously presented prior art rejection of claim 1 has been overcome by Applicant’s amendments. Similar reasoning applies to the amended independent claims 7 and 9. Accordingly, no prior art rejection remains in the application.
Claim Rejections - 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.
Claims 1, 3-6, and 9-14, rejected under 35 U.S.C. 101 because the claimed invention is directed to judicial exception without significantly more.
Claim 1 recites:
A pattern shape measurement method comprising:
Step 1: acquiring image data of a target pattern obtained by irradiating an observation region of a sample with a plurality of charged particles or electromagnetic waves (i.e., acquiring previously measured image data);
Step 2: generating first contour point group data in which (1) location information of a contour point of the target pattern extracted from the image data and (2) an index related to an orientation angle of a line connecting a center of the target pattern and the contour point from a reference line passing through the center of the target pattern are associated with each other (i.e., data manipulation and/or calculations, not particularly limited in method or technique, to associate data and an arbitrary assigned index value (data) are associated with one another, with such an association not being particularly limited, thus appears to be some form of mathematical calculation or judgement); and
Step 3: based on (1) the first contour point group data (i.e., data) and (2) a weighting table (i.e., data), in which one or more indexes and one or more weights determined based at least on a standard deviation of location information of the contour point of the target pattern present in a direction of the orientation angle are associated with each other and stored, generating second contour point group data according to the one or more weights (i.e., associating previously manipulated data and additional manipulated data, storing such data, generating additional data ‘according to’ the additional manipulated data, which appears to be some form of mathematical calculation or judgement), wherein
the generating the second contour point group data according to the one or more weights (i.e., step 3) includes Step 3(a): (i) repeatedly generating a random number based on the one or more weights and extracting an index corresponding to the random number from the weighting table, to obtain one or more extracted indexes (i.e., forming a dataset ‘based on’ the additional manipulated data, which again appears to be some form of mathematical calculation or judgement), and Step 3(b): (ii) generating a plurality of pieces of second contour point group data using location information of one or more contour points corresponding to the one or more extracted indexes among the first contour point group data (i.e., forming a dataset ‘using’ manipulated/calculated data, which again appears to be some form of mathematical calculation or judgement), and
the pattern shape measurement method further comprises:
Step 4: acquiring a plurality of pieces of measurement data by performing fitting for each of the plurality of pieces of generated second contour point group data (i.e., forming a dataset by not-particularly-limited fitting on previously generated data, which appears to be some form of mathematical calculation); and
Step 5: calculating a representative value from the plurality of pieces of measurement data (i.e., performing a mathematical calculation on previously generated data and/or making a judgement thereon).
See MPEP 2106 for subject matter eligibility guidelines and flowchart of eligibility test.
Under step 1 (MPEP 2106.03), the claim is directed toward a method (i.e., a process).
Under step 2A (MPEP 2106.04), prong one (MPEP 2106.04.II.A.1), the claim recites an abstract idea judicial exception, of forms 1 and 3 (see 2106.04(a)(2).I and 2106.04(a)(2).III), as noted above.
Under prong two (MPEP 2106.04.II.A.2), the claims do not recite additional elements that integrate the judicial exception into a practical application, because the claim recites only various forms of the judicial exception and recites only data manipulations, calculations, and/or judgements. No structure or particular techniques are required by the claim for the data manipulations recited, rather the claim includes merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f), adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g), and generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
Under step 2B (MPEP 2106.05), the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception, because the claim does not contain additional steps/structure beyond the aforementioned mere instructions to implement an abstract idea on a computer, (see MPEP § 2106.05(f)), the claim simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry, as discussed in Alice Corp., 573 U.S. at 225, 110 USPQ2d at 1984 (see MPEP § 2106.05(d)), the claim adds insignificant extra-solution activity to the judicial exception, e.g., mere data gathering (see MPEP § 2106.05(g)), and the claim generally links the use of the judicial exception to a particular technological environment or field of use (MPEP § 2106.05(h)).
Accordingly, claim 1 is not patent eligible, and is rejected under 35 U.S.C. 101.
Claims 3-6 similarly recite insignificant extra-solution activity, field of use, and judicial exception limitations that do not integrate the judicial exception into a practical application, nor amount to significantly more than the judicial exception(s).
Claim 9 is patent ineligible for substantially similar reasons to claim 1, as claim 9 is merely directed toward a storage medium having a program to perform the method of claim 1.
Claims 11-14, similar to claims 3-6, recite insignificant extra-solution activity, field of use, and judicial exception limitations that do not integrate the judicial exception into a practical application, nor amount to significantly more than the judicial exception(s).
Allowable Subject Matter
Claims 7-8 are allowed.
The following is an examiner’s statement of reasons for allowance:
The prior art of record and that searched, whether alone or in combination, is insufficient to teach each and every limitation of amended claims 7 and 8 absent impermissible hindsight reconstruction.
In particular, the amended limitations are clearly not disclosed for the reasons previously discussed in regards to previously presented claims 2 and 10. Examiner again notes that the use of random numbers to select portions of data is represented in the prior art of record and that searched, including in the same field of endeavor. However, as presently amended the prior art fails to teach the specific correspondence of the random number, the index, and the weight in order to generate additional data in the particular manner required.
Having overcome all outstanding indefiniteness and formal issues, claims 7-8 achieve distinction over the prior art of record and that searched, and are thus allowed.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
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 CHRISTOPHER J GASSEN whose telephone number is (571)272-4363. The examiner can normally be reached M-F 9-5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ROBERT H 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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/CHRISTOPHER J GASSEN/ Examiner, Art Unit 2881
/WYATT A STOFFA/ Primary Examiner, Art Unit 2881
