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.
Claims 1-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of copending Application Serial No.19/082,623 (Pub. No. US 2025/0278032 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because:
With respect to claim 1 of the instant application, the claim recites an EUV transmissive membrane comprising: a metallic beryllium layer; a first nitride layer covering a first side of the metallic beryllium layer; a second nitride layer covering a second side of the metallic beryllium layer; each nitride layer comprising at least one material selected form silicon nitride, beryllium nitride, boron nitride, and zirconium nitride and EUV transmittance of at least 88% at 13.5nm. Claim 1 of the copending application’623 already claims the same central three- layer membrane: first nitride layer, metallic beryllium layer, second nitride layer, using the same claimed group of nitride materials.
The principal difference is that claim 1 of the application’623 additionally recites amorphous-carbon projective layers covering the exterior surface of the respective nitride layers, whereas instant claim 1 is directed to the membrane without those external carbon layers. This difference does not render instant claim 1 patentably distinct. Claims 8-9 of the application’623 expressly claim contacting the five-layer membrane with hydrogen plasma, hydrogen radicals, oxygen plasma, and/or oxygen radicals to thin the first and second carbon protective layers. The application’623 explains that the carbon layer serves as protective layers during manufacture and may thereafter be thinned or removed to improve EUV transmittance. Therefore, the carbon layers are sacrificial or temporary exterior protective layers rather than necessary structural components of the membrane during final EUV transmission.
Thus, a person having ordinary skill in the art, considering the application’623 as a whole, would have found it obvious to continue the expressly claimed thinning treatment until the exterior amorphous-carbon protective layers were substantially removed, thereby leaving the expressly claimed underlying structure: first nitrite layer, metallic beryllium layer and second nitride layer. The motivation would have been to increase EUV transmission by eliminating absorption attributable to the carbon protective layers after those layers had completed their intended protective function.
It is noted that the increase from the application’623’s threshold of at least 85% to the instant claim’s threshold of at least 88% does not establish patentable distinctness. The claim of the application’623 recites the same materials and same central layer arrangement and further recites thinning of the carbon layers for the express purpose of increasing transmission. Removal or further thinning of the absorptive carbon layers would predictably increase EUV transmittance. Moreover, the application’623 examples report transmittance values exceeding 88%, including approximately 91.1%, 92.6% and 93.8%, depending upon the presence and thickness of the protective carbon layers. Accordingly, the claimed threshold of at least 88% represents an expected property of the same membrane structure after the expressly claimed carbon-layer thinning or removal and does not impart patentable distinctness. Therefore, instant claim 1 of the present application is an obvious variation of claims 1, 8 and 9 of the application’623.
With respect to instant claims 2-4, they further recite thickness ranges for the principal membrane structure. It is noted that the claims of the application’623 already identify the same layers, the same order and overlapping or closely related thickness ranges, the selection of the instant claimed ranges would have been an obvious optimization of a result-effective variable and do not render claims 2-4 patentably distinct.
Instant claims 5-9 recite a pellicle comprising the membrane of claim 1. The application’623 claims an EUV transmissive membrane intended for use during EUV exposure. Providing the claimed membrane as the transmissive membrane of a pellicle would have been obvious because that is the stated and conventional use of such membranes. Claims 5-9 are therefore not patentably distinct from claims 1, 8 and 9 of the application’623.
Instant claim 10 is directed to an EUV exposure method that begins with a membrane having: a metallic beryllium layer; first and second nitride layers covering the respective sides of the metallic beryllium layer; first and second amorphous-carbon protective layers covering the nitride layers and further recites: generating hydrogen plasma, hydrogen radicals, oxygen plasma, and/or oxygen radicals; brining the plasma or radicals into contact with the membrane; thinning or removing the carbon protective layers and thereafter transmitting EUV radiation through the resulting membrane to perform pattern exposure. This method is not patentably distinct form claims 1, 8, 9 of the application’ 623 since claim 1 of the applicant’ 623 claims the same five-layer starting membrane and claim 8 claims installing that membrane in an apparatus in which hydrogen plasma, hydrogen radicals, oxygen plasma and/or oxygen radicals are generated and bringing the plasma or radicals into contact with the membrane to thin the first and second protective layers. Claim 9 additionally claims installing the membrane in an EUV exposure apparatus, contacting the membrane with the same hydrogen-or oxygen-containing plasma or radicals to thin the first and second protective layers, and transmitting EUV radiation through the membrane to perform pattern exposure on a photosensitive substrate. Thus, instant claim 10 would have been obvious over claims 1, 8 and 9 of the application’623 and is not patentably distinct therefrom.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Prior Art Made of Record
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Inazuki et al (U.S.Pat. 11,835,851); Van Zwol et al (US 2022/0187701 A1) and Nikipelov et al (US 2017/0205704 A1) disclose membranes for use in lithographic devices and have been cited for technical background.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HUNG HENRY NGUYEN whose telephone number is (571)272-2124. The examiner can normally be reached Monday-Friday 7:00AM-4:30PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Toan Minh Ton can be reached at 571-272-2303. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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HUNG HENRY NGUYEN
Primary Examiner
Art Unit 2882
Hvn
7/23/26
/HUNG V NGUYEN/Primary Examiner, Art Unit 2882
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