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 .
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.
Claim 1 is rejected under 35 U.S.C. 101 because the claimed invention is directed to the abstract idea of “providing the first and second measured data” and “processing the first measured and second measured data” without significantly more. The claim recites applying model-based analysis to Raman and OCD spectra in order to determine a characteristic of a patterned structure. This judicial exception is not integrated into a practical application because the determined characteristic is not used for adjustment or modification of a further method step, i.e. the method as claimed merely determines a characteristic and does not use the determined characteristic in any meaningful way.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claim recites “providing first and second measured data”, which indicates that the necessary optical measurements were already performed outside of the scope of the claimed invention. The claim also recites “processing the first measured and second measured data” by “applying model-based analysis” which is a mathematical concept; it has been held by the court that mathematical concepts are not significantly more than the abstract idea.
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 1 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10,732,116 (Barak). Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims read on, and are narrower than, the instant claims.
Claim 1: Barak discloses a method for use in measuring one or more characteristics of patterned structures (Col. 11, Lines 13-14), the method comprising:
providing first and second measured data, wherein the first measured data is indicative of at least one Raman spectrum obtained from a patterned structure under measurements using at least one selected optical measurement scheme each with a predetermined configuration of at least one of illuminating and collected light conditions corresponding to said one or more characteristics to be measured (Col. 11, Lines 15-23); and the second measured data comprises at least one spectrum obtained from said patterned structure in Optical Critical Dimension (OCD) measurement session (Col. 11, Lines 24-27);
processing the first measured and second measured data, and determining said one or more characteristics of the structures, wherein said processing comprises: applying model- based analysis to said at least one Raman spectrum (Col. 11, Lines 28-29) and said at least one OCD spectrum (Col. 11, Lines 35-36), and determining said one or more characteristics of the patterned structure under measurements (Col. 11, Lines 33-34).
Claim Rejections - 35 USC § 102
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 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 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Janik (US 7,903,260), hereinafter Janik.
Claim 1: Janik discloses a method for use in measuring one or more characteristics of patterned structures (Abstarct), the method comprising:
providing first and second measured data, wherein the first measured data is indicative of at least one Raman spectrum (“inelastic scattering data”, Col. 4, Lines 33-43) obtained from a patterned structure under measurements using at least one selected optical measurement scheme each with a predetermined configuration of at least one of illuminating and collected light conditions (“measuring Raman spectra at multiple polar and/or azimuthal angles”, Col. 7, Lines 29-39) corresponding to said one or more characteristics to be measured (“the material properties at various locations within measurement pattern 291A can be determined”, Col. 7, Lines 35-47); and the second measured data comprises at least one spectrum obtained from said patterned structure in Optical Critical Dimension (OCD) measurement session (Col. 4, Lines 56-60);
processing the first measured and second measured data, and determining said one or more characteristics of the structures, wherein said processing comprises: applying model-based analysis to said at least one Raman spectrum and said at least one OCD spectrum (“a mathematical model for the measurement pattern”, Col. 4, Line 66 - Col. 5, Line 16), and determining said one or more characteristics of the patterned structure under measurements (“the amount of strain in measurement pattern 281A can be determined”, Col. 7, Lines 5-28).
Conclusion
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to HINA F AYUB whose telephone number is (571)270-3171. The Examiner can normally be reached on 9am-5pm ET Mon-Fri.
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, Tarifur Chowdhury can be reached on 571-272-2287. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Hina F Ayub/
Primary Patent Examiner
Art Unit 2877
