Jens Kugler et al.

Patent Trials and Appeals BoardDec 13, 2019

14793308 - (D) (P.T.A.B. Dec. 13, 2019)

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. 14/793,308 07/07/2015 Jens Kugler 22942-0032006 2711 26161 7590 12/13/2019 FISH & RICHARDSON P.C. (BO) P.O. BOX 1022 MINNEAPOLIS, MN 55440-1022 EXAMINER MARTINEZ, JOSEPH P ART UNIT PAPER NUMBER 2872 NOTIFICATION DATE DELIVERY MODE 12/13/2019 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): PATDOCTC@fr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JENS KUGLER, FRANZ SORG, ANDREAS WURMBRAND, THOMAS SCHLETTERER, and THOMAS ITTNER ____________________ Appeal 2018-003240 Application 14/793,308 Technology Center 2800 ____________________ Before LINDA M. GAUDETTE, N. WHITNEY WILSON, and WESLEY B. DERRICK, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s January 17, 2017 decision finally rejecting claims 2, 3, 5–14, 19, 20, 22, 23, 25 and 27–302 (“Non-Final Act.”). We have jurisdiction over the appeal 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 Carl Zeiss SMT GmbH as the real party in interest (Appeal Br. 1). 2 Claims 4, 15–18, 21, 24, and 26 were objected to, not rejected, and are not part of this appeal (Final Act. 1). Appeal 2018-003240 Application 14/793,308 2 CLAIMED SUBJECT MATTER Appellant’s disclosure relates to an apparatus which is capable of removing an optical element, such as a lens or mirror, from a lithography objective and moving a different optical element, matched specifically to the changes within the lithography objective, into the lithography objective again (Spec. 2). Appellant seeks an apparatus which permits replacement of an optical element arranged between two adjacent optical elements in a lithography objective (Spec. 1). Details of the claimed structure are set forth in representative claim 2, which is reproduced below from the Claims Appendix to the Appeal Brief: 2. An apparatus, comprising: a holder configured to hold an optical element, wherein: the holder is configured to move between two adjacent optical elements within the interior of the lithography objective; and the holder is movable between an interior of a lithography objective and an exterior of the lithography objective so that the holder is useable to do at least one of the following: a) remove the optical element from the interior of lithography objective; and b) position the optical element within the interior of the lithography objective. REJECTIONS 1. Claim 30 is rejected on the grounds of non-statutory double- patenting over claim 2 of US 7,515,363. 2. Claim 30 is rejected on the grounds of non-statutory double- patenting over claim 2 of US 7,768,723. Appeal 2018-003240 Application 14/793,308 3 3. Claims 2, 3, 5–7, 10–14, 20, 22, 23, 25 and 27–29 are rejected under 35 U.S.C. § 102(b) as anticipated by Spinali.3 4. Claims 8 and 9 are rejected under 35 U.S.C. § 103(a) as unpatentable over Spinali. DISCUSSION Appellant does not contest the obviousness-type double patenting rejections (Appeal Br. 2). Accordingly, we are not apprised of error and, thus, summarily affirm Rejections 1 and 2. Moreover, Appellant does not separately argue any of the claims (see Appeal Br. 4). Accordingly, our analysis will focus on the § 102(b) rejection of claim 2 over Spinali. The Examiner’s findings underlying this rejection are set forth at page 4 of the Final Action. In part, the Examiner finds that Spinali’s holder 190 corresponds to the claimed holder, and optical element 102b corresponds to the claimed optical element (Final Act. 4, citing Spinali, FIGS. 1a–11). The Examiner further finds that the holder is configured to be moveable between an interior of a lithography objective and an exterior to allow removal of the optical element from the interior and/or to place the optical element within the interior (id., citing Spinali, 2:44–54 and 3:52–55). “A prior art reference anticipates a patent claim under 35 U.S.C. § 102(b) if it discloses every claim limitation.” In re Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012) (citing Verizon Servs. Corp. v. Cox Fibernet Va., Inc., 602 F.3d 1325, 1336–37 (Fed. Cir. 2010)). In this instance, the 3 Spinali, US 6,449,106 B1, issued September 10, 2002. Appeal 2018-003240 Application 14/793,308 4 only challenge Appellant makes to the anticipation rejection is to argue that “the Examiner did not properly establish that Spinali discloses that his element 190 is movable between an interior of a housing of a lithography objective and an exterior of the housing of the…lithography objective” (Appeal Br. 3–4). However, the Examiner finds that: Spinali explicitly teaches in fig. 1b that support structure (132, 170 and 180) enclose 3 sides (wherein the examiner interprets 132, 170, and 180 to teach a housing) of sub-barrels (102a, 102b, 102c shown in fig. 1a) and providing an opening (between 161 to 161) to removably fasten the sub-barrels (col. 2, ln. 44-54) and slide each sub-barrel in and out of alignment with the corresponding optical axis, and therefore can be individually attached to or detached from the support structure (col. 3, ln. 52-55). (Ans. 2, some internal citations omitted). Appellant does not specifically challenge these findings and, accordingly, has not persuasively shown error in them. We, therefore, affirm the rejection. Moreover, because Appellant does not make additional arguments with regard to any other claims (see, Appeal Br. 4), we affirm the rejections of those claims as well. (Additionally, the Examiner makes more unchallenged findings in the Answer at pages 3–9 which support the rejections of these claims.) Appeal 2018-003240 Application 14/793,308 5 CONCLUSION In summary: Claims Rejected 35 U.S.C. § References(s)/Basis Affirmed Reversed 30 Obviousness-type double patenting US 7,515,363 30 30 Obviousness-type double patenting US 7,768,723 30 2, 3, 5–7, 10– 14, 20, 22, 23, 25, 27–29 102(b) Spinali 2, 3, 5–7, 10–14, 20, 22, 23, 25 27–29 8, 9 103(a) Spinali 8, 9 Overall Outcome 2, 3, 5–14, 19, 20, 22, 23, 25 and 27–30 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