Ex Parte Feldmann

Patent Trial and Appeal BoardAug 27, 2014

12607612 (P.T.A.B. Aug. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte HEIKO FELDMANN ____________ Appeal 2013-003032 Application 12/607,612 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, ROMULO H. DELMENDO, and KAREN M. HASTINGS, Administrative Patent Judges. HASTINGS, Administrative Patent Judges. DECISION ON APPEAL Appeal 2013-003032 Application 12/607,612 2 Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–20. An oral hearing was conducted on August 5, 2014. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Claim 1 is representative of the claimed subject matter (emphasis added): 1. An optical arrangement, comprising: a mask configured to form a three-dimensional radiation pattern; a substrate; a radiation-sensitive material layer supported by the substrate, the radiation-sensitive material layer having first and second planes in a thickness direction of the radiation sensitive material layer, the first plane being different from the second plane; and a projection optical unit configured to image the three-dimensional radiation pattern from the mask into the radiation-sensitive material layer, wherein the optical arrangement is configured to compensate for spherical aberrations at the same time at least within the first and second planes to generate a stigmatic image of the three-dimensional radiation pattern in the radiation-sensitive material layer, and wherein the optical arrangement is configured to be used in a projection exposure apparatus for microlithography. Independent claim 19 recites a method corresponding to the optical arrangement of claim 1 (Claims App’x). The Examiner maintains, and Appellant appeals, the following rejections: (a) claims 1–8, 11–13, 15, and 18–20 under 35 U.S.C. § 102(b) as anticipated by Chang (US 2008/0113279 A1, issued May 15, 2008); (b) claims 1–13, 15, and 18–20 as anticipated under 35 U.S.C. Appeal 2013-003032 Application 12/607,612 3 § 102(b) by Koreshev (Focused Image Holograms in High-Resolution Holographic Projection Photolithography, 101 OPT. SPECTROSC. 976-979 (2006)); (c) claims 1–20 as unpatentable under 35 U.S.C. § 103(a) over the combined prior art of Koreshev, Chang, and Hendriks (US 2005/0019675 A1, published Jan. 27, 2005); (d) claims 1–15 and 18–20 as unpatentable under 35 U.S.C. § 103(a) over the combined prior art of Koreshev, Chang, and Willson (US 2004/0116548 A1, published June 17, 2004); and (e) claims 1–15 and 18–20 as unpatentable under 35 U.S.C. § 103(a) over the combined prior art of Ueno (US 2001/0048184 A1, published Dec. 6, 2001), Koreshev, Mathisen (US 3,677, 634, issued July 18, 1972), Amako (US 5,497,254, issued Mar. 5, 1996), and Ivanova (EP 1 785 771 A2, published May 16, 2007). ANALYSIS Upon consideration of the evidence on this record and each of Appellant’s contentions, we find that the preponderance of evidence on this record supports the Examiner’s finding that the subject matter of Appellant’s claims 1 and 19 is anticipated by Koreshev which explicitly recognizes correcting for spherical aberrations in a holographic imaging system. On the other hand, since Chang is silent as to the correction of spherical aberrations, we find that the evidence weighs in favor of Appellant’s position and reverse the § 102 rejection based on Chang alone (App. Br. 3; Reply Br. 1, 2). Appellant does not argue with sufficient specificity any of the remaining § 103 rejections, all of which rely in part upon Koreshev (App. Br. 7–9). Accordingly, we will sustain all of the Examiner’s rejections that Appeal 2013-003032 Application 12/607,612 4 rely upon Koreshev for essentially those reasons expressed in the Answer, including the Examiner’s Response to Argument section, and we add the following for emphasis. “[T]he PTO must give claims their broadest reasonable construction consistent with the specification . . . . Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). “[A]s applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” Id. Appellant’s Specification explains that one embodiment of their invention is the use of a mask of a “holographic structure, which at least partly compensates for spherical aberrations along the thickness direction of the radiation-sensitive material layer” (Spec. 5, third full paragraph; see also Spec. 13, 14). The Specification describes that a holographic mask can “completely” compensate for spherical aberrations (Spec. 13, second full paragraph; Spec. 14, second full paragraph).1 Correction of spherical aberrations results in the generation of a stigmatic image (id.). 1 It appears that this result is achieved by using a computer generated holographic structure (Spec. 14, third full paragraph (“[i]f the spherical aberrations are completely compensated for by the [computer programmed holographic] mask,” then a “conventional projection optical unit” may be used). We note that there are no specific examples or algorithms described to achieve such a virtual holographic mask structure that completely compensates for spherical aberrations to produce a stigmatic image. Appeal 2013-003032 Application 12/607,612 5 Appellant has not refuted with any specificity the Examiner’s detailed findings that Koreshev teaches an optical arrangement and method as claimed using a holographic mask and further teaches correction for spherical aberrations such that the system will “generate a stigmatic image” as recited in claim 1 or claim 19 (Ans. generally, Briefs generally). Appellant’s arguments that Koreshev is a 2D holography system that uses two-dimensional transparencies (Reply Br. 3) are unavailing. First, the Examiner’s position that the holographic method of Koreshev generates a 3D pattern in the resist layer is reasonable. Second, even the thinnest “transparency” will have a thickness. As the Examiner pointed out, the claim language does not specify any specific depth in relation to how far apart the first and second planes are (Ans. 7 “[t]he claims [d]o not specify the separation of the planes”). Accordingly, first and second planes that are directly adjacent one another in a thickness direction by, e.g., a micrometer dimension, satisfy the claim language. In re ICON Health & Fitness, Inc., 496 F.3d at 1379. Furthermore, it is well established that when there is a reason to conclude that the structure of the prior art is capable of performing the claimed function, the burden shifts to the applicant to show that the claimed function patentably distinguishes the claimed structure from the prior art structure. See, e.g., In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). Appellant’s de facto mere allegations that Koreshev does not describe comparable arrangements/methods to the claimed arrangement/method (App. Br. 7, 8; Reply Br. 3) are not sufficient to refute the Examiner’s reasonable findings that Koreshev’s optical arrangement /method does indeed explicitly teach that aberrations, including spherical aberrations, are Appeal 2013-003032 Application 12/607,612 6 “corrected simultaneously over the entire field.” Koreshev, p. 977, col. 1. Appellant has also not provided any evidence or persuasive technical reasoning to refute the Examiner’s determination that the resultant function, that is, “to generate a stigmatic image of the three-dimensional radiation pattern in the radiation-sensitive material layer” of claim 1 (and corresponding language of claim 19) will also occur. With respect to dependent claims 3 and 6, Appellant merely restates the claim limitations and asserts that the cited references fail to teach these limitations. (App. Br. 6, 7.) As such, Appellant’s statements are considered to be nothing more than general allegations of patentability and are not considered separate patentability arguments. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Appellant does not argue with sufficient specificity any of the remaining § 103 rejections listed as (c) to (e) above, all of which rely in part upon Koreshev (App. Br. 7–9). Accordingly we affirm these rejections. In summary, we reverse the rejection of claims 1–8, 11–13, 15, and 18–20 under 35 U.S.C. § 102(b) as anticipated by Chang, and we affirm each of the Examiner’s remaining § 102 and § 103 rejections of the claims. Appeal 2013-003032 Application 12/607,612 7 The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED cdc