Joanne Wu et al.

Patent Trials and Appeals Board

Aug 26, 2019

14512446 - (D) (P.T.A.B. Aug. 26, 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.
14/512,446 10/12/2014 Joanne Wu 5222-28600/P4289 1737
61507 7590 08/26/2019
Entropy Matters LLC
P.O. Box 2250
NEW YORK, NY 10021
EXAMINER
RASTOVSKI, CATHERINE T
ART UNIT PAPER NUMBER
2862
MAIL DATE DELIVERY MODE
08/26/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOANNE WU, ELLIS CHANG, LISHENG GAO,
SATYA KURADA, ALLEN PARK, and RAGHAV BABULNATH
____________

Appeal 2018-008617
Application 14/512,446
Technology Center 2800
____________

Before LINDA M. GAUDETTE, MONTÉ T. SQUIRE, and
SHELDON M. MCGEE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1–37 under 35 U.S.C. § 101.
We AFFIRM.

1 This Decision includes citations to the following documents: Specification
filed October 12, 2014 (“Spec.”); Final Office Action dated September 19,
2017 (“Final Act.”); Advisory Action dated December 8, 2017 (“Advisory
Act.”); Appeal Brief filed February 26, 2018 (“Appeal Br.”); Examiner’s
Answer dated June 29, 2018 (“Ans.”); and Reply Brief filed August 29,
2018 (“Reply Br.”).
2 The Appellant is the Applicant, KLA-Tencor Corporation, also identified
as the real party in interest. Appeal Br. 2.
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According to the Specification, at the time of the invention, it was
known in the art to electrically test devices formed on wafers to determine if
the devices function in the proper manner. Spec. 1:16–18. One of the most
popular test methods involved measuring the elevated leakage current to
identify a defective chip. Id. at 1:18–19. According to the Specification,
when transistor geometries are decreased, intrinsic leakage current increases,
making it difficult to distinguish between fault-free and faulty devices. Id. at
1:25–27. Moreover, leakage current testing is not directly correlated to
defect types and, therefore, does not provide information on the root causes
of reliability issues. Id. at 1:28–30. The invention is directed to methods and
systems for detecting reliability defects on wafers that is said to overcome
one or more of these disadvantages of the prior art test methods. Id. at 1:7–8,
2:4–5.
Independent claim 1 is representative of the appealed claims, and is
reproduced below.
1. A computer-implemented method for detecting reliability
defects on a wafer, comprising:
generating output for a wafer by scanning the wafer with
light with an inspection system and detecting light
from the wafer during the scanning with the
inspection system, wherein the inspection system
directs the light from a light source of the
inspection system to the wafer during the scanning,
wherein the light from the wafer is collected and
detected by one or more channels of the inspection
system during the scanning, and wherein the one
or more channels comprise a detector configured
to generate the output that is responsive to the light
collected from the wafer;
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determining one or more characteristics of one or more
patterned features formed on the wafer based on
the output; and
identifying which of the one or more patterned features
will cause one or more reliability defects in a
device being formed on the wafer based on the
determined one or more characteristics, wherein
said determining and said identifying are
performed by a computer system, and wherein the
computer system is coupled to the inspection
system such that the output generated by the
detector during the scanning is provided to the
computer system.
Appeal Br. 36 (Claims Appendix) (emphasis added). Independent claim 19
recites “[a] non-transitory computer-readable medium, storing program
instructions executable on a computer system for performing a computer-
implemented method for detecting reliability defects on a wafer.” Id. at 39.
Claim 19 recites the steps of the computer implemented method. Id. The
steps are similar to those recited in independent claim 1. Compare claim 19,
with claim 1. Independent claim 20 recites “[a] system configured to detect
defects on a wafer . . . with light and detecting light from the wafer during . .
. scanning.” Appeal Br. 39–40. The claim 20 system comprises “an
inspection subsystem configured to generate output for a wafer by scanning
the wafer” and “a computer subsystem coupled to the inspection subsystem,”
and configured to perform determining and identifying steps similar to those
recited in claim 1. Id. at 40; compare claim 20, with claim 1.
The Examiner rejected claims 1–37 under 35 U.S.C. § 101 as directed
to patent ineligible subject matter. Final Act. 4. An invention is
patent-eligible if it claims a “new and useful process, machine, manufacture,
or composition of matter.” 35 U.S.C. § 101. The Supreme Court, however,
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has long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws
of nature, natural phenomena, and abstract ideas” are not patentable. Alice
Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a
claim falls within an excepted category, we are guided by the Supreme
Court’s two-step framework, described in Alice (see id. at 217–18), and
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66,
75–77 (2012). In accordance with that framework, we first determine what
concept the claim is “directed to.” See Alice, 573 U.S. at 219.
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (id. at 219–20; Bilski v. Kappos, 561 U.S. 593, 611
(2010)); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95
(1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69
(1972)). Concepts determined to be patent eligible include physical and
chemical processes, such as “molding rubber products” (Diamond v. Diehr,
450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth,
vulcanizing India rubber, smelting ores” (id. at 183 n.7 (quoting Corning v.
Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson,
409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If a claim is “directed to” an abstract idea, we turn to the second step
of the Alice and Mayo framework, where “we must examine the elements of
the claim to determine whether it contains an ‘inventive concept’ sufficient
to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Alice, 573 U.S. at 221. “A claim that recites an abstract idea must include
‘additional features’ to ensure ‘that the [claim] is more than a drafting effort
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designed to monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at
77).
In January of this year, the PTO published revised guidance on the
application of § 101. USPTO, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the
Guidance, we first look to whether a claim recites (1) any judicial
exceptions, including certain groupings of abstract ideas (i.e., mathematical
concepts, certain methods of organizing human activity such as a
fundamental economic practice, or mental processes), and (2) additional
elements that integrate the judicial exception into a practical application (see
MPEP §§ 2106.05(a)–(c), (e)–(h)). Only if a claim (1) recites a judicial
exception and (2) does not integrate that exception into a practical
application, do we then look to whether the claim (3) adds a specific
limitation beyond the judicial exception that is not “well-understood,
routine, conventional” in the field (see MPEP § 2106.05(d)), or (4) simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception. See Guidance.
The Appellant argues the claims as a group (see generally Appeal Br.
5–34), noting that independent claims 19 and 20 recite limitations similar to
those in claim 1 (id. at 5). Accordingly, we focus our discussion on claim 1.
Step 1
Under Step l of the Guidance, we consider whether the claimed
subject matter falls within the four statutory categories set forth in § 101,
namely “[p]rocess, machine, manufacture, or composition of matter.”
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Guidance, 84 Fed. Reg. at 53–54; see 35 U.S.C. § 101. Claim 1 recites a
series of steps and, therefore, falls into the statutory category of a process.
Step 2A, Prong I
As indicated above, under Step 2A, Prong I of the Guidance, we next
consider whether claim 1 recites a judicial exception, including one of the
following groupings of abstract ideas: (1) mathematical concepts, e.g.,
mathematical relationships, mathematical formulas or equations, and
mathematical calculations; (2) mental processes, e.g., concepts performed in
the human mind, including observations, evaluations, judgments, and
opinions; and (3) certain methods of organizing human activity, e.g.,
fundamental economic principles or practices (including hedging, insurance,
mitigating risk), commercial or legal interactions (including agreements in
the form of contracts, legal obligations, advertising, marketing or sales
activities or behaviors, business relations, and managing personal behavior
or relationships or interactions between people (including social activities,
teaching, and following rules or instructions). See Guidance, 84 Fed. Reg. at
52.
The Examiner determined the claims are directed to the abstract idea
of data/information gathering. Final Act. 5. Data/information gathering is
not listed explicitly among the groupings of abstract ideas identified in the
Guidance. However, the Final Office Action and the Answer were mailed
prior to issuance of the Guidance. For the reasons discussed below, we
determine claim 1 falls within the category of a mental process and,
therefore, agree with the Examiner that claim 1 is directed an abstract idea.
Claim 1 recites that the determining step is performed by a computer
system that is coupled to an inspection system. The Specification discloses
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that the images, image data, or any other output generated by the inspection
system may be used to determine one or more of any of the characteristics of
the patterned features described in the Specification. Spec. 6:24–27. For
example,
images or image data generated by an inspection system may be
used to determine one or more dimensions of one or more
patterned features formed on the wafer. The one or more
characteristics may be determined based on the output of the
inspection system using any suitable method and/or algorithm.
Id. at 6:27–30 (emphasis added).
Claim 1 recites that the identifying step is performed by a computer
system that is coupled to the inspection system. The Specification discloses
that
the identifying step includes determining one or more
characteristics of the device based on the determined one or
more characteristics of the one or more patterned features and
determining if the one or more characteristics of the device will
cause a reliability defect in the device. For example, the one or
more characteristics of the patterned feature(s) may be input to
a function or algorithm that defines a relationship between the
one or more characteristics and one or more characteristics of
the device.
Spec. 7:29–8:4 (emphasis added). The Specification discloses that
the device characteristic(s) can be quantitatively determined
directly from the characteristic(s) of the patterned feature(s)
determined from the inspection system output . . . . The device
characteristic(s) determined for the patterned feature(s) can then
be analyzed to determine if those patterned feature(s) will cause
a reliability issue for the device and therefore if those patterned
feature(s) are reliability defects. . . . Determining which
patterned features will cause reliability defects based on the
device characteristic(s) determined for the patterned features
may be performed in any other suitable manner.
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Id. at 8:12–17, 21–23 (emphasis added).
The Federal Circuit has stated that “analyzing information by steps
people go through in their minds, or by mathematical algorithms, without
more, [are] essentially mental processes within the abstract-idea category.”
Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353–54 (Fed. Cir.
2016).
We find that the step of determining falls into the category of a
mental process because it could be performed in the human mind with the
aid of pen and paper, e.g., determining a dimension by evaluation of data
generated by an inspection system. See Spec. 7:18–21 ([C]haracteristic(s) of
patterned features may be determined based on the output as described
above to provide one or more measured values of the characteristic(s).
Those characteristic(s) may then be subtracted from the as-designed values,
which may be determined from any of the design or design data . . . .”
(emphasis added)). We find that the step of identifying also falls into the
category of a mental process because it could be performed in the human
mind with the aid of pen and paper, e.g., an evaluation involving a
comparison of “the sub-threshold leakage current for a patterned feature . . .
to a threshold that separates acceptable sub-threshold leakage current values
from sub-threshold leakage current values that may be problematic for the
device.” Id. at 8:17–21 (emphasis added). Claim 1’s recitation of using a
generic computer system to perform the steps of determining and
identifying does not render the method patent eligible. See Bancorp Servs.,
L.L.C. v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d 1266, 1279 (Fed.
Cir. 2012), cert. denied, 134 S. Ct. 2870 (2014) (“Using a computer to
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accelerate an ineligible mental process does not make that process patent-
eligible.”).
The Appellant has not provided persuasive argument or evidence
establishing that the claim 1 determining and identifying steps could not be
performed via a mental process.3
Step 2A, Prong II
According to the Guidance, even if a claim recites any one of the three
groupings of abstract ideas, the claim is still not “directed to” a judicial
exception (abstract idea), and thus is patent eligible, if “the claim as a whole
integrates the recited judicial exception into a practical application of that
exception.” Guidance, 84 Fed. Reg. at 53. Limitations that are indicative of
“integration into a practical application” include: (1) improvements to the
functioning of a computer, or to any other technology or technical field (see
MPEP § 2106.05(a)); (2) applying the judicial exception with, or by use of, a
particular machine (see id. § 2106.05(b); (3) effecting a transformation or
reduction of a particular article to a different state or thing (see id.
§ 2106.05(c)); and (4) applying or using the judicial exception in some other
meaningful way beyond generally linking the use of the judicial exception to
a particular technological environment, such that the claim as a whole is
more than a drafting effort designed to monopolize the exception (see id.
§ 2106.05(e)). See Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”). In
contrast, limitations that are not indicative of “integration into a practical

3 Appellant’s argument the “there is not a commercially available generic
algorithm that could be used to perform the presently claimed determining
and identifying steps” (Reply Br. 11) is contradicted by the above-quoted
disclosure on pages 6–8 of the Specification.
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application” include: (1) adding the words “apply it” (or an equivalent) with
the judicial exception, merely including instructions to implement an
abstract idea on a computer, or merely using a computer as a tool to perform
an abstract idea (see MPEP § 2106.05(f)); (2) adding insignificant
extra-solution activity to the judicial exception (see id. § 2106.05(g); and
(3) generally linking the use of the judicial exception to a particular
technological environment or field of use (see id. § 2106.05(h)).
See Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”).
The Appellant argues the claims include limitations that are indicative
of “integration into a practical application.” The Appellant argues that the
claims recite an improvement to the existing technology of detecting
reliability defects on a wafer: “It is the incorporation of the claimed steps,
not the use of the computer subsystem or computer system, that improve the
existing technological process by allowing the identification of patterned
feature(s) that will cause one or more reliability defects in a device being
formed on a wafer as presently claimed.” Appeal Br. 24. The Appellant
argues the present claims are analogous to those in McRO, Inc. v. Bandai
Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), which were
determined to be patent eligible (see Appeal Br. 22–28):
when looked at as a whole, claims 1, 19, and 20 are directed to
a patentable, technological improvement over existing
reliability defect detecting techniques such as those described in
the prior art. The present claims use the limited steps in a
process specifically designed to achieve an improved
technological result in conventional industry practice.
Id. at 26.
The Appellant’s argument is not persuasive. The distinction drawn by
the Federal Circuit between the claims held not patent-eligible in SAP
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America, Inc. v. Investpic, LLC, 898 F.3d 1161 (Fed. Cir. 2018), and those
determined to be patent-eligible in McRO, is applicable to the claims in the
present appeal:
The claims in McRO were directed to the creation of something
physical—namely, the display of “lip synchronization and
facial expressions” of animated characters on screens for
viewing by human eyes. . . . The claimed improvement was to
how the physical display operated (to produce better quality
images), unlike (what is present here) a claimed improvement
in a mathematical technique with no improved display
mechanism.
Id. at 1167 (citing McRO, 837 F.3d at 1313). In other words, unlike the
claims in McRO, claim 1 does not require an application of the abstract idea.
See Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057,
1067–68 (Fed. Cir. 2011) (“The representative claim of the ’283 patent is
directed to the single step of reviewing the effects of known immunization
schedules . . . . The ’283 claims do not include putting this knowledge to
practical use . . . . In contrast, the claims of the ’139 and ’739 patents require
the further act of immunization in accordance with a lower-risk schedule,
thus moving from abstract scientific principle to specific application.”).
Rather, the inventive concept of claim 1 is embodied in the recited mental
process. See Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d
1354, 1359 (Fed. Cir. 2018) “[T]he ‘inventive concept’ cannot be the abstract
idea itself . . . .”).
The Appellant argues that the claims apply the judicial exception with
the use of a particular machine: “[T]he present claims do require the use of a
particular machine, namely the presently claimed inspection system or
subsystem, which includes presently claimed hardware (e.g., a light source,
one or more channels, a detector), and which generates output for a wafer
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that is required for other steps or functions performed by the present claims.”
Appeal Br. 15. “[T]he present claims recite the manipulation of patent
eligible subject matter (e.g., a wafer, which is manipulated by the presently
claimed scanning of the wafer by an inspection system or subsystem).” Id. at
16.
The Appellant’s argument is unpersuasive because the Appellant has
not shown that the claimed method requires the use of anything other than
generic equipment such as a generic computer system, detector, and light
source. See, e.g., Spec. 6:5–6 (“The inspection system may include any
suitable commercially available light- or electron beam-based inspection
system known in the art.”), 19:14–17 (“In general, the term ‘computer
system’ may be broadly defined to encompass any device having one or
more processors, which executes instructions from a memory medium. The
computer system may also include any suitable processor known in the art
such as a parallel processor.”); see Alice, 573 U.S. at 222–223 (“[L]imiting
the use of an abstract idea to a particular technological environment is not
enough for patent eligibility.” (internal citations and quotation marks
omitted)); Elec. Power Grp., 830 F.3d at 1354 (“[L]imiting the claims to the
particular technological environment of power-grid monitoring is, without
more, insufficient to transform them into patent-eligible applications of the
abstract idea at their core.”); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
715–16 (Fed. Cir. 2014) (explaining that “implement[ing] the abstract idea
with routine, conventional activity” and “invocation of the Internet” is not
sufficient to save otherwise abstract claims).
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The Appellant also argues claim 1 uses the judicial exception in a
meaningful way such that claim 1, as a whole, does not monopolize the
exception:
[T]he limitations recited in the present claims clearly include
highly specific functions (e.g., generating output for a wafer by
scanning the wafer, determining one or more characteristics of
one or more patterned features formed on the wafer based on
the output, and identifying which of the one or more patterned
features will cause one or more reliability defects in a device
being formed on the wafer). . . . [T]he claims, which are
directed to a complex manufactured industrial product (i.e., a
wafer inspection subsystem or system that scans a wafer with
light and detects light from the wafer during the scanning) or
process, and which recite meaningful limitations along with an
alleged judicial exception, sufficiently limit practical
application of the alleged judicial exception.
Appeal Br. 6–7. The Appellant’s argument is not persuasive.
In addition to the steps of determining and identifying that we have
determined fall into the category of mental processes, claim 1 recites a step
of “generating output for a wafer by scanning the wafer with light with an
inspection system and detecting light from the wafer during the scanning
with the inspection system” (emphasis added). We determine that claim 1’s
generating step is merely a data gathering step necessary to conduct the
recited abstract idea, and, therefore, constitutes extra-solution activity
insufficient to confer patent-eligibility to claim 1. See Guidance, 84 Fed.
Reg. at 55, 55 n.31; MPEP § 2106.05(g); OIP Techs., Inc. v. Amazon.com,
Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (holding that mere data gathering
is insufficient to confer patent eligibility).
As explained by the Federal Circuit,
claims focused on “collecting information, analyzing it, and
displaying certain results of the collection and analysis” are
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directed to an abstract idea. Electric Power, 830 F.3d at 1353.
“Information as such is an intangible,” hence abstract, and
“collecting information, including when limited to particular
content (which does not change its character as information),
[i]s within the realm of abstract ideas.” Id. (citing cases). So,
too, is “analyzing information . . . by mathematical algorithms,
without more.” Id. at 1354 (citing cases, including Parker . . .
and . . . Benson . . . ). And “merely presenting the results of
abstract processes of collecting and analyzing information,
without more (such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection
and analysis.” Id. (citing cases). The claims here are directed
[to] abstract ideas under those principles.
SAP Am., 898 F.3d at 1167.
Step 2B
Under Step 2B of the Guidance, we determine whether the claim
provides an “inventive concept,” i.e., whether the additional elements
beyond the judicial exception, individually and in combination, amount to
“significantly more” than the judicial exception itself. Guidance, 84 Fed.
Reg. at 56. According to the Guidance, “simply append[ing]
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality,” is indicative that an
inventive concept is absent. Id.
The Appellant contends the limitations in claim 1 amount to
significantly more than a mental process because they provide improvements
to the technical field of detecting reliability defects on a wafer. Appeal Br.
5–6. The Appellant’s argument is unpersuasive because, as explained by the
Examiner, “detecting light scanned over a wafer is well-understood, routine,
and conventional.” Ans. 5 (citing Urano, US 2008/0297783 A1 (Dec. 4,
2008) ¶ 34; Bhaskar, US 8,126,255 B2 (Feb. 28, 2012) 9:29–32, as evidence
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of the conventional use of a light source and detector for scanning wafers).
The Appellant has not addressed the disclosures in the cited references,
which we find support the Examiner’s contention. See, e.g., Bhaskar 9:23–
32 (“One embodiment relates to a system configured to store image data
generated by scanning a wafer with an inspection system. . . . The image
data may include any image data that can be generated by a detector of an
inspection system. Scanning of the wafer may be performed in any suitable
manner (e.g., by scanning light across the wafer and detecting light reflected
and/or scattered from the wafer during scanning).”).
As further explained by the Examiner “[a]lthough Appellant
differentiates between gathering data and [the claimed step of] generating
output[,] . . . the act of making and recording a measurement is the
generation of an output and . . . any measurement system generates output.
Therefore generating output in this context is not significantly more than the
abstract idea.” Ans. 9; see CyberSource Corp. v. Retail Decisions, Inc., 654
F.3d 1366, 1370 (Fed. Cir. 2011) (quoting In re Grams, 888 F.2d 835, 840
(Fed. Cir. 1989) (“We have held that mere ‘[data-gathering] step[s] cannot
make an otherwise nonstatutory claim statutory.’”)).
The Appellant argues that “even if the output generated by the
inspection subsystem is routine and conventionally known, the combination
of all of the elements recited in the claims is not routine and conventionally
known.” Reply Br. 10. The Appellant argues “the present claims are not
directed to a well known method or system for identifying reliability defects
on a wafer and instead are directed to a completely different method or
system for detecting reliability defects on a wafer.” Id. at 12. The
Appellant’s arguments essentially are that the claims differ from the prior art
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methods, but novelty and nonobviousness are not enough to confer subject-
matter eligibility. See SAP Am., 898 F.3d at 1163.
ORDER
Claims
Rejected
Basis Reference(s) Affirmed Reversed
1–37 § 101 1–37
Outcome 1–37
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED