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 .
Drawings
Figure 19 should be designated by a legend such as --Prior Art-- because only that which is old is illustrated. See MPEP § 608.02(g). Corrected drawings in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. The replacement sheet(s) should be labeled “Replacement Sheet” in the page header (as per 37 CFR 1.84(c)) so as not to obstruct any portion of the drawing figures. 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 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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to the abstract idea of a mental process without significantly more. Independent claims 1, 17, and 19-20 recite methods and devices which perform functions such as “deriv[ing] a thickness…from an intensity”; “calculat[ing] calibration ratios”; “generat[ing] a calibration graph”; and “deriv[ing] a thin film thickness…from the calibration graph.” These are steps of performing mathematical operations and creating a graph from data.
The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012) ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same).
In the instant case, the functions of the independent claims can be performed by the human mind or by a human using pen and paper. For instance, humans are capable of creating a graph from data with pen and paper, and performing mathematical operations either mentally or with pen and paper.
This judicial exception is not integrated into a practical application because there is no claimed application of the mathematically determined values; the independent claims recite only steps of performing mathematical operations to obtain or determine a result, without reciting a use or application of said result.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because all of the remaining claim limitations are directed to mere data gathering (e.g., “measur[ing] a first X-ray intensity…measur[ing] second X-ray intensities…and measur[ing] a third X-ray intensity”), or only serve to link the abstract idea to the general field of charged particle inspection.
The courts have found mere data gathering to be insignificant extra-solution activity. For example, the courts found performing clinical tests on individuals to obtain input for an equation to be insignificant extra-solution activity (In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989)). Similarly, the claimed steps of measuring X-ray intensities is insignificant extra-solution data gathering.
Limitations that amount to merely indicating a field of use or technological environment in which to apply a judicial exception do not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application. Furthermore, use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not integrate a judicial exception or provide significantly more. (MPEP 2106.05(b)(III)). See Bilski, 561 U.S. at 610, 95 USPQ2d at 1009 (citing Parker v. Flook, 437 U.S. 584, 590, 198 USPQ 193, 197 (1978)), and CyberSource v. Retail Decisions, 654 F.3d 1366, 1370, 99 USPQ2d 1690 (Fed. Cir. 2011) (citations omitted) ("[N]othing in claim 3 requires an infringer to use the Internet to obtain that data. The Internet is merely described as the source of the data. We have held that mere ‘[data-gathering] step[s] cannot make an otherwise nonstatutory claim statutory.’" 654 F.3d at 1375, 99 USPQ2d at 1694 (citation omitted)). The recited limitations “an electron beam generator which irradiates an electron beam onto a target object” and “a detector which detects X-rays emitted from the target object by the electron beam” merely indicate the field of use, i.e., charged particle inspection, in which to apply the judicial exception. Therefore, the claims do not amount to significantly more than the judicial exception.
Dependent claims 2-16 and 18 fail to provide any application of the above abstract ideas. Furthermore, dependent claims 2-16 and 18, taken alone or in an ordered combination, fail to recite anything that is significantly more than the abstract idea at issue. Claims 2-3 recite only limitations directed to mere data-gathering, and claim 4 is directed to mere data gathering in combination with further mathematical operations. Claims 5-9 and 18 recite only limitations directed to the abstract idea of the mental process discussed above, i.e., the shape of the graph and mathematical calculations using the graph. Claims 10-16 are directed to a particular article worked upon by the claimed device and therefore do not amount to anything more than indicating a particular field of use. Therefore, dependent claims 2-16 and 18 fail to amount to significantly more than the abstract idea for the same reasons as noted above.
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.
Claim 4 is 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 4 recites the limitation “the first calibration ratio and the second calibration ratio measured from the plurality of target thin films for which the thicknesses are known”. There is insufficient antecedent basis for this limitation in the claim. For the purpose of compact prosecution, the Examiner has interpreted “the first calibration ratio and the second calibration ratio measured from the plurality of target thin films for which the thicknesses are known” to mean “the first calibration ratio are known and the second calibration ratio measured from the plurality of lower films for which the thicknesses are known”.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 9 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends. Independent claim 1 recites “a thickness calculator which derives a thin film thickness corresponding to the third X-ray intensity from the calibration graph” (emphasis added), wherein the third X-ray intensity is an X-ray intensity of the target thin film. Claim 7, which depends from claim 1 and therefore includes all of the subject matter recited in claim 1, recites that the calibration graph (which is used to derive a thickness of the target thin film as disclosed in claim 1) has a straight line shape within the linear segment (“a graph obtained by connecting both end points of the linear segment by a straight line”). Claim 9 depends from claim 7 through claim 8. Therefore, the recitation in claim 9 of “the thickness calculator derives a thickness of the target thin film using the calibration graph having the straight line shape within the linear segment” fails to further limit to subject matter of the claim upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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.
Claim 20 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Liu et al. (CN Patent No. 108508052 A), hereinafter Liu (English machine translation provided).
Regarding claim 20, Liu discloses a thin film thickness measuring method comprising:
measuring first X-ray intensities of a plurality (page 3, paragraph beginning “4)”) of target thin films for which thicknesses are known (page 3, last paragraph, reference element A in the double layer standard sample);
measuring second X-ray intensities of a plurality of lower films which are disposed below the plurality of target thin films (FIG. 2 shows the double layer sample with upper and lower films) and for which thicknesses are known (page 3, last paragraph, reference layer B in the double layer standard sample);
calculating calibration ratios, which are ratios of the first X-ray intensities to the second X-ray intensities or ratios of the second X-ray intensities to the first X-ray intensities (page 4, paragraph 1: calibration ratio C), to generate a calibration graph (FIG. 4) representing the calibration ratios against a thickness of the plurality of target thin films (page 7, paragraph beginning “by 180 s…”); and
measuring a third X-ray intensity of a target thin film for which a thickness is unknown (page 3, last paragraph to page 4, paragraph 2: the third X-ray intensity is measured for the “to-be-tested sample layer”) to derive a thin film thickness corresponding to the third X-ray intensity from the calibration graph (page 7, paragraph beginning “6)”).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-11, 13, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Sweeney et al. (“Electron Probe Measurements of Evaporated Metal Films”, 1960), hereinafter Sweeney, in view of Zhou et al. (CN Patent No. 110017798 A), hereinafter Zhou (English machine translation provided).
Regarding claim 1, Sweeney discloses a thin film thickness measuring device comprising:
an electron beam generator which irradiates an electron beam onto a target object (page 1061, Introduction, lines 1-3) comprising a target thin film (FIG. 1, steps 6-7) and a lower film (FIG. 1, steps 4-5) disposed below the target thin film;
a detector which detects X-rays emitted from the target object by the electron beam (page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 1-6); and
an element which derives a thickness of the target thin film from an intensity of the X-rays detected by the detector (page 1062, column 2, paragraph beginning “The calibration curves…”, lines 1-3), the element comprising:
an element which measures a first X-ray intensity of a bulk sample of the target thin film or a bulk sample of the lower film (page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 6-7), measures second X-ray intensities of a plurality of target thin films for which thicknesses are known or a plurality of lower films disposed below the plurality of target thin films for which the thicknesses are known (page 1061, Introduction, lines 5-6; and page 1061, column 2, paragraph 1, lines 1-4);
an element which calculates calibration ratios which are ratios of the second X-ray intensities to the first X-ray intensity (FIG. 3, caption: the intensities from the thin films are divided by the intensity of the bulk sample);
an element which generates a calibration graph representing the calibration ratios against a thickness of the plurality of target thin films (FIG. 3); and
an element which derives an unknown thin film thickness from the calibration graph (page 1062, column 2, paragraph beginning “The calibration curves…”, lines 1-3).
Sweeney fails to disclose a calculation unit; an X-ray intensity calculator which measures a third X-ray intensity of a target thin film for which a thickness is unknown or a lower film which is disposed below the target thin film for which the thickness is unknown; a calibration ratio calculator; a calibration data storage; and a thickness calculator.
However, Zhou discloses a calculation unit (FIG. 1, element 1), the calculation unit comprising:
an X-ray intensity calculator (paragraph spanning the end of page 5 to the beginning of page 6) which measures a third X-ray intensity of a target thin film for which a thickness is unknown or a lower film which is disposed below the target thin film for which the thickness is unknown (page 6, paragraph 3; the target thin film is the film deposited: “substrate sample to be tested is deposited with film”);
a calibration ratio calculator (page 4, paragraph beginning “analyzing device…”: the analyzing device calculates X-ray intensity ratios);
a calibration data storage (paragraph spanning the end of page 5 to the beginning of page 6: memory); and
a thickness calculator (paragraph spanning the end of page 5 to the beginning of page 6).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Sweeney to include a calculation unit, the calculation unit comprising: an X-ray intensity calculator which measures a third X-ray intensity of a target thin film for which a thickness is unknown or a lower film which is disposed below the target thin film for which the thickness is unknown; a calibration ratio calculator; a calibration data storage; and a thickness calculator, based on the teachings of Zhou that measuring the X-ray intensity advantageously enables non-destructive measuring of the film thickness on the nanometer scale (Zhou, page 2, last paragraph).
Furthermore, implementing a known function on a computer has been deemed obvious to one of ordinary skill in the art if the automation of the known function on a general purpose computer is nothing more than the predictable use of prior art elements according to their established functions. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417, 82 USPQ2d 1385, 1396 (2007). In the case at hand, the disclosure of Sweeney shows that deriving a thickness from an intensity, measuring X-ray intensities, calculating ratios, and generating a graph are known and predictable functions of prior art elements.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Sweeney to include a calculation unit, the calculation unit comprising: an X-ray intensity calculator; a calibration ratio calculator; a calibration data storage; and a thickness calculator, based on the teachings of Zhou, because such a modification amounts to nothing more than implementing a known function on a computer.
Regarding claim 2, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
In addition, Sweeney discloses that the first X-ray intensity is an X-ray intensity of the bulk sample of the target thin film (FIG. 1, steps 6-7; page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 6-10), and
the second X-ray intensities are X-ray intensities of the plurality of target thin films for which the thicknesses are known (FIG. 1, steps 6-7; page 1061, column 2, paragraph 1, lines 1-4).
Regarding claim 3, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
In addition, Sweeney discloses that the first X-ray intensity is an X-ray intensity of the bulk sample of the lower film (FIG. 1, steps 4-5; page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 6-10), and
the second X-ray intensities are X-ray intensities of the plurality of lower films disposed below the plurality of target thin films for which the thicknesses are known (FIG. 1, steps 4-5; page 1061, column 2, paragraph 1, lines 1-4).
Regarding claim 4, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
In addition, Sweeney discloses that a calibration ratio when the first X-ray intensity is an X-ray intensity of the bulk sample of the target thin film (FIG. 1, steps 6-7; page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 6-10), and the second X-ray intensities are X-ray intensities of the plurality of target thin films for which thicknesses are known (FIG. 1, steps 6-7; page 1061, column 2, paragraph 1, lines 1-4) is a first calibration ratio (FIG. 3, steps 6-7 are the rightmost and second from the right data points of each curve),
a calibration ratio when the first X-ray intensity is an X-ray intensity of the bulk sample of the lower film (FIG. 1, steps 4-5; page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 6-10), and the second X-ray intensities are X-ray intensities of the plurality of lower films disposed below the plurality of target thin films for which the thicknesses are known (FIG. 1, steps 4-5; page 1061, column 2, paragraph 1, lines 1-4) is a second calibration ratio (FIG. 3, third and fourth data points from the rightmost data point of each curve),
the first calibration ratio and the second calibration ratio are each less than or equal to 1 (FIG. 3 expresses the ratios as percentages; the ratios are all shown to be less than 100%), and
a sum of the first calibration ratio and the second calibration ratio measured from the plurality of target thin films for which the thicknesses are known and are identical to each other, is 1 (Table 1 shows that steps 5 and 6 of Zn have approximately the same thickness; FIG. 3 shows that step 6 (second data point from the right on the Zn curve) has a ratio of approximately 60%, and step 5 (third data point from the right) has a ratio of approximately 40%; therefore, the sum of the two ratios is approximately 100%, or 1).
Regarding claim 5, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
In addition, Sweeney discloses that the calibration graph has a curved shape (FIG. 3: the calibration graph for Zn exhibits a curved shape).
Regarding claim 6, Sweeney in view of Zhou as applied to claim 5 discloses the thin film thickness measuring device of claim 5.
In addition, Sweeney discloses that the calibration graph having the curved shape has a linear segment in part (annotated FIG. 3 (below); the calibration graph for Zn has a linear segment in the intensity ratio range from 0 to approximately 40), and within the linear segment, the calibration graph having the curved shape has an error range of ±5% in comparison to a calibration graph having a straight line shape (abstract, lines 2-3: the x-ray intensity ratios “increased almost linearly with thickness”; furthermore, a straight line could be drawn connecting any arbitrary points on the graphs in FIG. 3 which represent an error range of ±5% in the shape of the graph).
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1: Annotated FIG. 3 (Sweeney)
Regarding claim 7, Sweeney in view of Zhou as applied to claim 6 discloses the thin film thickness measuring device of claim 6.
In addition, Sweeney discloses that the calibration graph having the straight line shape is a graph obtained by connecting both end points of the linear segment by a straight line (annotated FIG. 3: a straight line connects the end points located at (0, 0) and (0.25, 40).
Regarding claim 8, Sweeney in view of Zhou as applied to claim 7 discloses the thin film thickness measuring device of claim 7.
In addition, Sweeney discloses that the linear segment is a range corresponding to 10% to 90% of a calibration ratio of the calibration ratios (annotated FIG. 3: the linear segment is a range corresponding to 40% of the calibration ratios).
Regarding claim 9, Sweeney in view of Zhou as applied to claim 8 discloses the thin film thickness measuring device of claim 8.
In addition, Sweeney discloses deriving a thickness of the target thin film using the calibration graph having the straight line shape within the linear segment (page 1062, column 2, paragraph beginning “The calibration curves…”, lines 1-3).
Regarding claim 10, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
In addition, Sweeney discloses that a thickness of the plurality of target thin films for which the thicknesses are known is less than or equal to a thickness of the bulk sample of the target thin film (page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 1-12: the bulk sample is considered to be infinitely thick relative to the target thin films for which the thicknesses are known).
Regarding claim 11, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
In addition, Sweeney discloses that a thickness of the bulk sample of the target thin film and a thickness of the bulk sample of the lower film are greater than or equal to an analyzable depth of the electron beam generator ((page 1061, Introduction, lines 9-11; page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 1-12: the bulk sample is considered to be infinitely thick).
Regarding claim 13, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
In addition, Sweeney discloses that the target thin film comprises a metal layer of a single element (Table 1: Zn).
Regarding claim 15, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
Claim analysis is highly fact-dependent. A claim is only limited by positively recited elements. Thus, “[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims.” In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). MPEP § 2115. Claim 15 is directed to a thin film thickness measuring device, and the prior art teaches all of the claimed elements of the measuring device (see claim 1 supra). The limitations “the target object is a display device which is being manufactured or has been manufactured, wherein the display device comprises: at least one conductive film; and a non-conductive film which insulates the at least one conductive film from an outside or other layers” do not impart patentability to the claim because the object being measured is not part of the device performing the measuring; rather, the target object is a material or article worked upon by the structure (the thin film thickness measuring device) being claimed. Therefore, patentability cannot be based upon a certain target object being measured as the target object is irrelevant in terms of the device performing the measuring.
Regarding claim 16, Sweeney in view of Zhou as applied to claim 15 discloses the thin film thickness measuring device of claim 15.
Claim analysis is highly fact-dependent. A claim is only limited by positively recited elements. Thus, “[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims.” In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). MPEP § 2115. Claim 16 is directed to a thin film thickness measuring device, and the prior art teaches all of the claimed elements of the measuring device (see claim 1 supra). The limitations “the target thin film is the conductive film, and the lower film is the non-conductive film” do not impart patentability to the claim because the object being measured is not part of the device performing the measuring; rather, the target object is a material or article worked upon by the structure (the thin film thickness measuring device) being claimed. Therefore, patentability cannot be based upon a certain target object being measured as the target object is irrelevant in terms of the device performing the measuring.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Sweeney in view of Zhou as applied to claim 1 above, and further in view of Lublin et al. (U.S. Patent No. 3,984,679 A), hereinafter Lublin.
Regarding claim 12, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
In addition, Sweeney discloses that the target thin film comprises a plurality of layers (FIG. 1, steps 6-7).
Sweeney in view of Zhou fails to disclose that the plurality of layers each includes at least one different element.
However, Lublin discloses that the plurality of layers each includes at least one different element (column 2, lines 60-64: gold and nickel).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Sweeney in view of Zhou to include that the plurality of layers each includes at least one different element, based on the teachings of Lublin that the use of different elements enables optimization of sensitivity and rapid analysis for multiple applications or scenarios (Lublin, column 2, lines 44-59).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Sweeney in view of Zhou as applied to claim 1 above, and further in view of Makino et al. (U.S. Patent Application Publication No. 2008/0073533 A1), hereinafter Makino.
Regarding claim 14, Sweeney in view of Zhou as applied to claim 1 discloses the thin film thickness measuring device of claim 1.
Sweeney in view of Zhou fails to disclose a stage on which the target object is disposed, wherein the target object and the stage are not electrically connected.
However, Makino discloses a stage (FIG. 2, stage 212) on which the target object is disposed (FIG. 2, target object 29),
wherein the target object and the stage are not electrically connected (paragraph 0043).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Sweeney in view of Zhou to include a stage on which the target object is disposed, wherein the target object and the stage are not electrically connected, based on the teachings of Makino that this electrical separation enables the application of desired voltages to the sample without interfering with the stage (Makino, paragraph 0043).
Claims 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Liu in view of Zhou and The Penguin Dictionary of Physics (“X-rays”, The Penguin Dictionary of Physics, 2009), hereinafter “X-rays”.
Regarding claim 17, Liu discloses a thin film thickness measuring device comprising:
a beam generator (FIG. 1, element 1) which irradiates a beam onto a target object (FIG. 1, target object on sample table 5) comprising a target thin film and a lower film disposed below the target thin film (FIG. 2 shows the double layer sample with upper and lower films);
a detector (FIG. 1, element 3) which detects X-rays emitted from the target object by the beam (page 6, paragraph beginning “detector 3…”); and
an element which derives a thickness of the target thin film from an intensity of the X-rays detected by the detector (page 7, paragraph beginning “6)”), the element comprising:
an element which measures first X-ray intensities of a plurality (page 3, paragraph beginning “4)”) of target thin films for which thicknesses are known (page 3, last paragraph, reference element A in the double layer standard sample), measures second X-ray intensities of a plurality of lower films which are disposed below the plurality of target thin films (FIG. 2 shows the double layer sample with upper and lower films) for which the thicknesses are known (page 3, last paragraph, reference layer B in the double layer standard sample), and measures a third X-ray intensity of a target thin film for which a thickness is unknown (page 3, last paragraph to page 4, paragraph 2: the third X-ray intensity is measured for the “to-be-tested sample layer”);
an element which calculates calibration ratios, which are ratios of the first X-ray intensities to the second X-ray intensities or ratios of the second X-ray intensities to the first X-ray intensities (page 4, paragraph 1: calibration ratio C);
an element which generates a calibration graph (FIG. 4) representing the calibration ratios against a thickness of the plurality of target thin films (page 7, paragraph beginning “by 180 s…”); and
an element which derives a thin film thickness corresponding to the third X-ray intensity from the calibration graph (page 7, paragraph beginning “6)”).
Liu fails to disclose that the beam generator is an electron beam generator which irradiates an electron beam onto the target object to cause the target object to emit X-rays; and a calculation unit, the calculation unit comprising: an X-ray intensity calculator; a calibration ratio calculator; a calibration data storage; and a thickness calculator.
However, Zhou discloses a calculation unit (FIG. 1, element 1), the calculation unit comprising:
an X-ray intensity calculator (paragraph spanning the end of page 5 to the beginning of page 6);
a calibration ratio calculator (page 4, paragraph beginning “analyzing device…”: the analyzing device calculates X-ray intensity ratios);
a calibration data storage (paragraph spanning the end of page 5 to the beginning of page 6: memory); and
a thickness calculator (paragraph spanning the end of page 5 to the beginning of page 6).
Implementing a known function on a computer has been deemed obvious to one of ordinary skill in the art if the automation of the known function on a general purpose computer is nothing more than the predictable use of prior art elements according to their established functions. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417, 82 USPQ2d 1385, 1396 (2007). In the case at hand, the disclosure of Liu shows that deriving a thickness from an intensity, measuring X-ray intensities, calculating ratios, and generating a graph are known and predictable functions of prior art elements.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Liu to include a calculation unit, the calculation unit comprising: an X-ray intensity calculator; a calibration ratio calculator; a calibration data storage; and a thickness calculator, based on the teachings of Zhou, because such a modification amounts to nothing more than implementing a known function on a computer.
Liu in view of Zhou fails to disclose that the beam generator is an electron beam generator which irradiates an electron beam onto the target object to cause the target object to emit X-rays.
However, the disclosure of “X-rays” demonstrates that the use of electrons as a radiant energy source which is capable of stimulating secondary X-rays to be emitted is known in the art of stimulated X-ray emission. “X-rays” also shows that substituting electrons for another radiant energy source yields the predictable result of stimulating secondary X-ray emission from an area of a target struck by the electrons. “[W]hen a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” United States v. Adams, 383 U.S. 39 (1966). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Liu in view of Zhou to include that the beam generator is an electron beam generator which irradiates an electron beam onto the target object to cause the target object to emit X-rays because it is not inventive to substitute one known element for another which yields predictable results to one of ordinary skill in the art. See MPEP 2143 I (B).
Regarding claim 18, Liu in view of Zhou and “X-rays” as applied to claim 17 discloses the thin film thickness measuring device of claim 17.
In addition, Liu discloses that the calibration graph has a straight line shape (FIG. 4: the calibration graph approximates a straight line shape between 20 μm and 40 μm).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Sweeney in view of Lublin.
Regarding claim 19, Sweeney discloses a thin film thickness measuring method comprising:
measuring a first X-ray intensity of a bulk sample (page 1062, column 2, paragraph beginning “After the thickness measurements…”, lines 6-7) of a target thin film (FIG. 1, steps 6-7) or a bulk sample of a lower film (FIG. 1, steps 4-5) disposed below the target thin film;
measuring second X-ray intensities of a plurality of target thin films for which thicknesses are known or a plurality of lower films which are disposed below the plurality of target thin films and for which thicknesses are known (page 1061, Introduction, lines 5-6; and page 1061, column 2, paragraph 1, lines 1-4);
calculating calibration ratios, which are ratios of the second X-ray intensities to the first X-ray intensity (FIG. 3, caption: the intensities from the thin films are divided by the intensity of the bulk sample), to generate a calibration graph representing the calibration ratios against a thickness of the plurality of target thin films (FIG. 3); and
deriving an unknown thin film thickness from the calibration graph (page 1062, column 2, paragraph beginning “The calibration curves…”, lines 1-3).
Sweeney fails to disclose measuring a third X-ray intensity of a target thin film for which a thickness is unknown or a lower film which is disposed below the target thin film and for which a thickness is unknown.
However, Lublin discloses measuring a third X-ray intensity of a target thin film for which a thickness is unknown or a lower film which is disposed below the target thin film and for which a thickness is unknown to derive a thin film thickness corresponding to the third X-ray intensity from the calibration graph (column 9, lines 1-8).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Sweeney to include measuring a third X-ray intensity of a target thin film for which a thickness is unknown or a lower film which is disposed below the target thin film and for which a thickness is unknown to derive a thin film thickness corresponding to the third X-ray intensity from the calibration graph, based on the teachings of Lublin that this enhances the sensitivity of the thickness measurement (Lublin, column 7, lines 59-61).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Churms et al. (“Instrument-Invariant Method of Film Thickness Determination by means of Substrate-to-Film X-ray Peak Intensity Ratioing”, 1987), hereinafter Churms, teaches a thin film thickness measuring device comprising: an electron beam generator which irradiates an electron beam onto a target object comprising a target thin film and a lower film disposed below the target thin film; and a detector which detects X-rays emitted from the target object by the electron beam; wherein a thickness of the target thin film is derived from a ratio of X-ray intensities detected by the detector.
Alvisi et al. (IT RM20090233 A1), hereinafter Alvisi (English machine translation provided), teaches a target thin film comprising a plurality of layers, and the plurality of layers each includes at least one different element.
Maldonado et al. (U.S. Patent No. 4,162,528 A), hereinafter Maldonado, teaches measuring X-ray intensities of a plurality of target thin films for which thicknesses are known and a plurality of lower films disposed below the plurality of target thin films for which the thicknesses are known.
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/A.K./Examiner, Art Unit 2881
/DAVID E SMITH/Examiner, Art Unit 2881
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