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 .
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.
Claim 16 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. (US 12,332,573) (hereinafter ‘573). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Current Application ‘573
Claim 1:
obtaining an after development image (ADI) of a substrate, the ADI comprising a plurality of features;
generating a first part of a model based on physical characteristic values related to a subset of features of the ADI; and
generating a second part of the model based upon the first part of the model and the physical characteristic values related to all the features of the plurality of features of the ADI, wherein the subset of features of the ADI are differentiated from other features of the ADI.
Claim 1:
obtaining, via a metrology tool, (i) an after development image of the imaged substrate at a given location, the after development image including a plurality of features, and (ii) an after etch image of the imaged substrate at the given location, the after etch image including etched features corresponding to the plurality of features; and
training, using the after development image and the after etch image, the model configured to determine defectiveness of a given feature of the plurality of features in the after development image, wherein the determining of defectiveness is based on comparing the given feature in the after development image with a corresponding etch feature in the after etch image.
Claims 17-30 of the current application do not correspond to any claims on ‘573.
Allowable Subject Matter
Claims 28-30 are allowed.
The closest prior art, US 2019/0005357 A1 (“Bhavripudi et al.”); KR-20190062606-A (“Hsu et al.”), fail to anticipate or render obvious at least the above limitations.
Claims 17-27 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 and provided the Double Patenting Rejection is overcome.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLOTTE M BAKER whose telephone number is (571)272-7459. The examiner can normally be reached Mon - Fri 8:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JENNIFER MEHMOOD can be reached at (571)272-2976. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLOTTE M BAKER/Primary Examiner, Art Unit 2664
20 August 2026
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