ASML NETHERLANDS B.V.

Patent Trials and Appeals Board

Jul 1, 2020

2019004688 (P.T.A.B. Jul. 1, 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.
15/196,120 06/29/2016 Daniel Jozef Maria DIRECKS 081468-0447791 7987
909 7590 07/01/2020
Pillsbury Winthrop Shaw Pittman, LLP
PO Box 10500
McLean, VA 22102
EXAMINER
ASFAW, MESFIN T
ART UNIT PAPER NUMBER
2882
NOTIFICATION DATE DELIVERY MODE
07/01/2020 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):
docket_ip@pillsburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL JOZEF MARIA DIRECKS,
SJOERD NICOLAAS LAMBERTUS DONDERS,
NICOLAAS RUDOLF KEMPER,
DANNY MARIA HUBERTUS PHILIPS,
MICHEL RIEPEN,
CLEMENS JOHANNES GERARDUS VAN DEN DUNGEN,
ADRIANES JOHANNES BAETEN,
and FABRIZIO EVANGELISTA

Appeal 2019-004688
Application 15/196,120
Technology Center 2800
Before JEFFREY T. SMITH, KAREN M. HASTINGS, and
JAMES C. HOUSEL, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
Appeal 2019-004688
Application 15/196,120

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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, 9, 15, 16, and 20–35 under 35 U.S.C.
§ 112 (pre-AIA), first paragraph, as failing to comply with the written
description requirement. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
CLAIMED SUBJECT MATTER
The claims are directed to a fluid handling structure system for a
lithographic apparatus comprising first and second fluid handling structures.
Appeal Br. 14, Claims App’x, Claim 1. Appellant discloses that the substrate
on which a lithographic pattern is to be imprinted in a lithographic
projection apparatus may be immersed in a liquid having a relatively high
refractive index so as to fill a space between the projection system and the
substrate. Spec. ¶¶ 3, 4. In such an immersion apparatus, the immersion fluid
is handled by a fluid handling structure, including a fluid supply system and
a fluid confinement or barrier system that provide immersion fluid to the
localized space between the projection system and the substrate. Id. ¶¶ 6, 7.
Appellant further discloses another type of fluid handling structure is a dryer

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as ASML
Netherlands B.V. Appeal Brief (“Appeal Br.”) filed August 28, 2018, 2.
2 This Decision also cites to the Specification (“Spec.”) filed June 29, 2016,
the Final Office Action (“Final Act.”) dated March 15, 2018, the Examiner’s
Answer (“Ans.”) dated March 29, 2019, and the Reply Brief (“Reply Br.”)
filed May 29, 2019.
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Application 15/196,120

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for a drying station, wherein liquid is removed from a substrate or substrate
table holding the substrate. Id. ¶ 142. The dryer may remove liquid from the
substrate table either with or without the substrate present on the table, or the
dryer may remove liquid from the surface of a sensor or target that may be
located on the table. Id. ¶ 143.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the claimed subject matter. Limitations at issue are
italicized.
1. A fluid handling structure system for a lithographic
apparatus, the fluid handling structure system comprising:
a first fluid handling structure having a plurality of
openings, the first fluid handling structure configured such that
the openings are directed, in use, towards a facing surface, the
facing surface being a substrate and/or a substrate table
configured to support the substrate and the first fluid handling
structure configured to supply liquid to a localized portion of
the facing surface and to confine the liquid to the localized
portion; and
a second fluid handling structure, outward of and
separate from the first fluid handling structure, having one or
more apertures directed, in use, towards the facing surface and
the one or more apertures arranged in a curved layout in a plane
parallel to the facing surface, wherein the one or more
apertures of the second fluid handling structure do not
surround the plurality of openings of the first fluid handling
structure and a side surface of the first fluid handling structure
is spaced apart from a side surface of the second fluid handling
structure by an open gap.
OPINION
We review the appealed rejection for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
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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
argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the appealed rejection. Accordingly, we affirm the
rejection for the reasons set forth in the Final Office Action and the
Examiner’s Answer, which we adopt as our own. We add the following
primarily for emphasis.
The Examiner finds that the second fluid handling structure recitation
in claim 1 lacks adequate written description support in the original
disclosure. Final Act. 3–4. Appellant argues that Figures 23–25 and
Specification paragraphs 39–41 and 144–154 provide written description
support for the second fluid handling structure as recited in claim 1. Thus,
the issue before us in this appeal is whether Appellant has identified
reversible error in the Examiner’s rejection of claim 1 under 35 U.S.C. § 112
(pre-AIA), first paragraph, for failing to comply with the written description
requirement.
The written description requirement provides that the specification
must “convey with reasonable clarity to those skilled in the art that, as of the
filing date sought, he or she was in possession of the invention.” Carnegie
Mellon Univ. v. Hoffmann-La Roche Inc., 541 F.3d 1115, 1122 (Fed. Cir.
2008) (quoting Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563–64 (Fed.
Cir. 1991)). “One shows that one is ‘in possession’ of the invention by
describing the invention, with all its claimed limitations, not that which
makes it obvious.” Lockwood v. American Airlines Inc., 107 F.3d 1565,
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1572 (Fed. Cir. 1997) (original emphasis not reproduced). “Although the
exact terms need not be used in haec verba . . . the specification must
contain an equivalent description of the claimed subject matter.” Id.
Similarly, “[t]he knowledge of ordinary artisans may be used to inform what
is actually in the specification, but not to teach limitations that are not in the
specification, even if those limitations would be rendered obvious by the
disclosure in the specification.” Rivera v. Int’l Trade Comm’n, 857 F.3d
1315, 1322 (Fed. Cir. 2017) (internal citation omitted).
Appellant contends that the Specification recites two different liquid
handling structures, one of which is depicted in Figures 6, 8, 20, and 21 and
are embodiments of the first fluid handling structure of claim 1, the other of
which is depicted in Figures 23–25 and are embodiments of the second fluid
handling structure of claim 1. Appeal Br. 6–7. Appellant asserts that it is
evident, from Figures 23–25 and Specification paragraphs 144–154, that
fluid handling structure 101 is separate from fluid handling structure 12
because fluid handling structure 101 is used to remove liquid from a
substrate table. Id. at 7. In this regard, Appellant notes that the fluid handling
structure of Figures 6, 8, 20, and 21 is numbered differently from the fluid
handling structure of Figures 23–25, none of Figures 23–25 shows fluid
handling structure 101 being integrated into or connected side-by-side with
fluid handling structure 12, and fluid handling structure 101 is described as
being another type of fluid handling structure than fluid handling structure
12. Id.
Appellant further asserts that it is also evident from these disclosures
“that a side surface of fluid handling structure 12 is spaced apart from a side
surface of fluid handling structure 101 by an open gap.” Id. According to
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Appellant, fluid handling structure 101 is described as “effectively a stand-
alone structure that is separate from [fluid] handling structure 12 and
accordingly, spaced from a side of [fluid] handling structure 12.” Id. at 8.
Appellant asserts that Specification paragraphs 142–154 describe that fluid
handling structure 101 is designed to remove liquid left behind by fluid
handling structure 12. Id. Appellant also asserts that fluid handling structure
101 is disclosed as being outward from fluid handling structure 12, “at least
because the fluid handling structure 101 acts to remove liquid remaining
after processing by liquid handling structure 12.” Id. Appellant urges that
fluid handling structure must be located outward of fluid handling structure
12 because “it is not apparent where else fluid handling structure 101 could
be besides outward of liquid handling structure 12.” Id. As such, Appellant
contends that fluid handling structure 101 “would necessarily have a side
surface of fluid handling structure 12 that is spaced apart from a side surface
of fluid handling structure 101 by an open gap.” Id.
Appellant’s arguments are not persuasive of reversible error because,
while there is written description support for two different (and separate)
fluid handling structures 12, 101, there is no written description support for
any structural relationship, location, or orientation between these two fluid
handling structures. Appellant fails to direct our attention to any written
description in the Specification or drawings, as originally filed, showing or
describing that a side surface of fluid handling structure 101 is outward of,
or spaced apart by an open gap from, a side surface of fluid handling
structure 12, nor do we find any. As Appellant notes, none of the Figures
show any structural relationship between these two different fluid handling
structures whatsoever; fluid handling structure 101 “is effectively a stand-
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alone structure that is separate from [fluid] handling structure 12.” Appeal
Br. 8. This fact does not lead to Appellant’s contentions that fluid handling
structure 101 must necessarily be outward of fluid handling structure 12 or
that these structures necessarily must be spaced from each other by an open
gap. Nor does this fact necessarily lead to the conclusion that the apertures
of fluid handling structure 101 do not surround the plurality of openings of
fluid handling structure 12.
Because the Specification is silent to any structural relationship
between these two different fluid handling structures, it is only through
unwarranted speculation that one is able to arrive at the limitations within
claim 1 reciting such a relationship. Indeed, there are many possibilities for
how fluid handling structures 12, 101 could be provided so that the first fluid
handling structure functions to immerse a substrate on a substrate table in
liquid, whereas the second fluid handling structure functions to remove
liquid from the substrate table. For example, the second fluid handling
structure could be provided in a drying station separate from a lithographic
projection station having the first fluid handling structure. See Spec. ¶ 142
(“Another type of fluid handling system in which an embodiment of the
invention may be implemented is a dryer for a drying station.”).
Alternatively, the fluid handling structures could be carried on different
rotating arms, permitting the structures to be rotated and lowered onto the
substrate table, alternately as needed. Or the fluid handling structures could
be combined together such that second fluid handling structure 101 is
attached (or even integrated) to the outer perimeter of first fluid handling
structure 12, wherein the substrate table is moved after patterning to permit
second fluid handling structure 101 to remove fluid from the table. Thus, at
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best, the recitation of the structural relationship between the first and second
fluid handling structures in claim 1 is merely one of numerous possible
relationships between these structures. Even in this instance, Appellant has
not identified reversible error in the Examiner’s rejection because that which
would have been obvious is insufficient to demonstrate an inventor’s
possession of claimed subject matter. Rivera, 857 F.3d at 1322.
We find a preponderance of the evidence supports the Examiner’s
position that claim 1 fails to comply with the written description requirement
as to the recitation of the structural relationship between the first and the
second fluid handling structures. Further, by virtue of their dependency on
claim 1, each of claims 9, 15, 16, and 20–35 also includes this recitation and
fails to comply with the written description requirement.
Accordingly, we sustain the Examiner’s rejection of claims 1, 9, 15,
16, and 20–35 under 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to
comply with the written description requirement.

CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Final Office Action and the Examiner’s Answer, the Examiner’s
decision to reject claims 1, 9, 15, 16, and 20–35 under 35 U.S.C. § 112 (pre-
AIA), first paragraph, as failing to comply with the written description
requirement is affirmed.
Appeal 2019-004688
Application 15/196,120

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 9, 15, 16,
20–35
112, 1st ¶ Written Description 1, 9, 15,
16, 20–35

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