Applied Materials, Inc.

Patent Trials and Appeals Board

Oct 6, 2020

2019006757 (P.T.A.B. Oct. 6, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/649,341 07/13/2017 Jang Fung CHEN 024049US 3422
44257 7590 10/06/2020
PATTERSON & SHERIDAN, LLP - - APPLIED MATERIALS
24 GREENWAY PLAZA
SUITE 1600
HOUSTON, TX 77046
EXAMINER
KREUTZER, COLIN WRIGHT
ART UNIT PAPER NUMBER
2882
NOTIFICATION DATE DELIVERY MODE
10/06/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Pair_Eofficeaction@pattersonsheridan.com
psdocketing@pattersonsheridan.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JANG FUNG CHEN and CHRISTOPHER DENNIS BENCHER
Appeal 2019-006757
Application 15/649,341
Technology Center 2800
Before JAMES C. HOUSEL, N. WHITNEY WILSON, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 9–12, and 16–19. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Applied
Materials, Inc. Appeal Br. 3.
Appeal 2019-006757
Application 15/649,341

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CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to an apparatus for a
photolithography process. Spec. ¶ 2. Claims 1, 9, and 16 are the independent
claims on appeal. Claim 1 is illustrative:
1. An illumination tool, comprising:
a microLED array, wherein the microLED array
comprises one or more microLEDs, wherein each microLED
produces at least one light beam;
a beam splitter adjacent the microLED array;
one or more refractory lens components adjacent the
beam splitter;
a projection lens adjacent the one or more refractory lens
components, wherein the projection lens comprises a focus
group and a window;
a focus sensor and a camera which are disposed adjacent
the beam splitter; and
a distortion compensator.
Appeal Br. 11 (Claims App.).

2 In this Decision, we refer to the Non-Final Office Action dated April 3,
2018 (“Non-Final Act.”), the Final Office Action dated September 11, 2018
(“Final Act.”), the Advisory Action dated January 24, 2019 (“Adv. Act.”),
the Appeal Brief filed April 3, 2019 (“Appeal Br.”), the Examiner’s Answer
dated August 6, 2019 (“Ans.”), and the Reply Brief filed September 16,
2019 (“Reply Br.”).
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Application 15/649,341

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REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Name Reference Date
Luttikhuis et al.
(“Luttikhuis”)
US 2006/0132734 A1 June 22, 2006
Dodoc et al.
(“Dodoc”)
US 2008/0043345 A1 Feb. 21, 2008
Kiuchi et al.
(“Kiuchi”)
US 2011/0013162 A1 Jan. 20, 2011
Chen et al.
(“Chen”)
US 2012/0026478 A1 Feb. 2, 2012
Eugene Hecht, Optics: 4th Edition, 218, 266, 267, San Francisco: Addison-
Wesley, 2002 (“Hecht”).
William Henry, MicroLED Arrays Find Applications in the Very Small,
Photonics Media, 2013, www.photonics.com/Article.aspx?AID=
53224%PID=5&VID=109%ID=672 (“Henry”).
REJECTIONS
The Examiner maintains (Ans. 3) the following rejections on appeal:
A. Claims 1–4 and 9–12 under 35 U.S.C. § 103 as obvious over Chen in
view of Henry.3 Final Act. 3.
B. Claims 16–19 under 35 U.S.C. § 103 as obvious over Chen in view of
Henry and Luttikhuis. Id. at 5.
For both of these rejections, the Examiner further relies upon Dodoc, Kiuchi,
and Hecht as supporting evidence. Adv. Act.; Ans. 3–5.

OPINION

3 The Examiner inadvertently omitted claim 9 from the rejection statement,
but addresses this claim in the body of the rejection. See Final Act. 4–5.
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We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t
has long been the Board’s practice to require an applicant to identify the
alleged error in the examiner’s rejections.”). After considering the evidence
presented in this Appeal and each of Appellant’s arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Appellant does not, substantively, argue any claims separately. See
Appeal Br. 7–9. Therefore, consistent with the provisions of
37 C.F.R. § 41.37(c)(1)(iv) (2018), we limit our discussion to claim 1, and
all other claims on appeal stand or fall together with claim 1.
The Examiner finds that Chen teaches an illumination tool having
most limitations of claim 1. Final Act. 3. The Examiner finds that Chen
teaches LED illumination but does not explicitly teach microLEDs. Id. The
Examiner finds that Henry teaches microLED devices for lithography
imaging. Id. The Examiner determines that it would have been obvious to
one of ordinary skill in the art to modify Chen to include microLED devices
to achieve the advantages Henry teaches. Id.
With respect to claim 1’s recitation of a “distortion compensator,” the
Examiner finds that Chen “fails to explicitly teach a distortion compensator
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disposed between the projection lens and the beamsplitter.” Id. at 4.4 The
Examiner finds, however, that optical elements compensating for distortion
were “well-known.” Id. The Examiner, in the Answer, cites three
references—Dodoc, Kiuchi, and Hecht—to support the “well-known”
finding. Ans. 4–5; see also Non-Final Act. 7–8 (citing Dodoc and Kiuchi);
Adv. Act. (citing Hecht). The Examiner determines that it would have been
obvious to one of ordinary skill in the art to modify Chen to include an
arrangement of elements to compensate for distortion in order to produce a
desired image on the substrate with the level of accuracy needed for
microlithography. Final Act. 4.
Appellant disagrees with the Examiner’s statement as to what is
“well-known” and argues that the Examiner errs by failing to cite references
to support the “well-known” finding. Appeal Br. 7. Appellant appears to
argue that we should assess the Examiner’s rejection based upon Chen and
Henry alone without considering Dodoc, Kiuchi, or Hecht. Id. For the
reasons explained below, this argument does not establish reversible error.
We begin our analysis by summarizing key portions of the
prosecution history that led to the present dispute:
July 13, 2017: Claim 1 of Appellant’s originally filed application does
not recite “a distortion compensator.” Spec. 13. Original claim 9 recited,

4 The Final Office Action discusses the distortion compensator in the context
of claim 9. Id. at 4. Appellant, however, is aware that the Examiner’s
findings and conclusions are now applicable to claim 1 as well (because
claim 1, as amended after the Final Office Action, now also recites the
distortion compensator). Appeal Br. 7–9; Reply Br. 2–4.
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among other things, “a distortion compensator disposed between the
projection lens and the beamsplitter.” Id. at 14.
April 3, 2018: The Examiner’s Non-Final Office Action rejects then-
pending claim 1 as obvious over Chen in view of Henry and identifies how
each recitation of then-pending claim 1 would have been obvious in view of
these two references. Non-Final Act. 4–5. With regard to claim 9, the
Examiner acknowledges that Chen does not explicitly teach a distortion
compensator but finds that optical elements compensating for distortion
were well-known. Id. at 6. The Examiner states a reason why it would have
been obvious to modify Chen to include well-known distortion
compensation lens elements. Id.
The Examiner further states that “prior art made of record and not
relied upon is considered pertinent to applicant’s disclosure,” and then
discusses the disclosure of that art. Id. at 7–8. The Examiner finds that
Kiuchi teaches a lithography apparatus having an array of projection optical
systems “wherein lenses are actuated to correct distortion” and finds that
Dodoc teaches a lithography projection optical system with “a pair of
aspheric lenses configured to correct distortion.” Id.
June 18, 2018: Appellant responds to the Non-Final Office Action but
does not argue claim 9’s recitations separately and does not dispute the
Examiner’s finding that distortion correction systems were well-known.
Reply to Office Action of April 3, 2018.
September 11, 2018: When addressing claim 9, the Examiner’s Final
Office Action, now at issue, restates the Examiner’s position with respect to
well-known distortion compensation lens elements. Final Act. 4–5.
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December 11, 2018: Appellant amends claim 1, after final, so that it
recites “a distortion compensator.” Appellant, for the first time, disagrees
with the Examiner’s position that “a distortion compensator” is well-known,
but Appellant does not address Kiuchi or Dodoc on the merits.
January 24, 2019: The Examiner’s Advisory Action states that Dodoc
and Kiuchi teach distortion compensation. The Advisory Action introduces
Hecht as further evidencing that lens systems compensating for distortion
were “well-known.”
April 3, 2019: Appellant files the present Appeal Brief.
The history above does not indicate that the Examiner took any
improper actions. The Manual of Patent Examining Procedure (9th Ed., Rev.
10.2019, June 2020) (“MPEP”), at Section 2144.03(A), explains that an
Examiner may assert that facts are “well-known.” Here, the Examiner did
this in the Non-Final Office Action.
The MPEP further explains that if an applicant traverses an assertion
that a fact is well-known, the Examiner must provide documentary evidence
supporting the assertion. The MPEP explains that, to traverse, “an applicant
must specifically point out the supposed errors in the examiner’s action,
which would include stating why the noticed fact is not considered to be
common knowledge or well-known in the art.” MPEP § 2144.03(C). If the
applicant traverses, the Examiner then must provide documentary evidence.
Id.
Here, Appellant disagreed with the Examiner’s finding that distortion
compensation lenses are well-known for the first time in the December 11,
2018, Amendment After Final. Contrary to the MPEP’s requirements,
however, Appellant did not state why distortion compensation elements
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would not have been common knowledge or well-known in the art.
MPEP § 2144.03(C). The Examiner, nonetheless, responded by citing
Dodoc, Kiuchi, and Hecht as supporting the Examiner’s finding that
distortion compensation elements were well-known. Adv. Act. Appellant,
even now on appeal, provides no evidence or substantive argument
attempting to refute this finding.
Based on the circumstances explained above, Appellant fails to
identify error in the Examiner’s determination that distortion compensation
elements were well-known. The Examiner properly cited Dodoc, Kiuchi,
and Hecht as supporting this finding. In addition, Appellant’s challenge of
this determination for the first time in the Amendment After Final was not
timely as the Examiner made this determination in the Non-Final Office
Action, and Appellant failed to explain why the challenge could not have
been made earlier.
In reaching our determinations above, we are cognizant of In re Hoch,
428 F.2d 1341 (CCPA 1970). In that decision, Judge Rich, writing for the
United States Court of Customs and Patent Appeals addressed an appellant’s
complaint that the Board approved the Examiner’s use of two prior art
patents that the Examiner did not mention in the statement of rejection. Id. at
1342 n.3. The court explained that references should be included in a
statement of rejection even if used in a minor capacity: “Appellant’s
complaint seems to be justified . . . . Where a reference is relied on to
support a rejection, whether or not in a ‘minor capacity,’ there would appear
to be no excuse for not positively including the reference in the statement of
the rejection.” Id.
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The present circumstances are distinguishable from In re Hoch.5 Here,
as explained above, the Examiner found that distortion compensation
elements were “well-known” in the Non-Final Office Action and explicitly
referred to Dodoc and Kiuchi in that Non-Final Office Action. Non-Final
Act. 6–8. Although the Examiner states that Dodoc and Kiuchi were “not
relied upon,” the Examiner also stated that they were “considered pertinent
to applicant’s disclosure.” Id. at 7. Pursuant to the MPEP, the Examiner had
no need to rely on Dodoc and Kiuchi until Appellant timely disputed the
Examiner’s finding that distortion compensation elements were well-known.
MPEP § 2144.03. Although the Examiner determines that Appellant’s
challenge to the Examiner’s finding was untimely, once Appellant raised
such a dispute, the Examiner properly responded by relying on Dodoc,
Kiuchi, and Hecht. See Adv. Act.
Moreover, while we determine that Dodoc, Kiuchi, and Hecht are
properly part of the Examiner’s rejection for the reasons explained above,
even if they were not, Appellant’s arguments would not identify reversible
error. The Examiner, as explained above, found that distortion compensation
elements are well-known, and Appellant has not provided any persuasive
evidence or argument refuting that finding on the merits. Appellant’s
arguments unpersuasively exalt form over substance.
Appellant also argues that the Examiner has failed to explain how and
why a person of skill in the art would be motivated to modify the

5 We also note that the portion of In re Hoch that we address here is dicta
because the court affirmed the board’s determination based on the soundness
of “rejections based solely on Molotsky and the French patent.” In re Hoch,
428 F.2d at 1342 n.3.
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combination of Chen and Henry with Dodoc, Henry, or Hecht. Appeal Br. 8;
Reply Br. 3–4. As explained above, however, the Examiner uses Dodoc,
Henry, and Hecht to support the finding that distortion compensation
elements were well-known. The Examiner states a reason why a person of
skill in the art would have incorporated these well-known elements into the
modified Chen apparatus (Final Act. 4; Ans. 5), and Appellant does not
identify evidence or provide persuasive arguments refuting the Examiner’s
stated reason to combine.
Because Appellant’s arguments do not identify reversible Examiner
error, we sustain the Examiner’s rejections.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 10–12 103 Chen, Henry 1–4, 9–12
16–19 103 Chen, Henry,
Luttikhuis
16–19
Overall
Outcome
1–4, 9–12,
16–19

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED