11173955 (B.P.A.I. Aug. 28, 2012)

Ex Parte Cybulski et al

Board of Patent Appeals and InterferencesAug 28, 2012

11173955 (B.P.A.I. Aug. 28, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/173,955 06/30/2005 Raymond F. Cybulski 2005-0009-01 7431 21773 7590 08/28/2012 CYMER INC LEGAL DEPARTMENT 17075 Thornmint Court SAN DIEGO, CA 92127-2413 EXAMINER PARK, KINAM ART UNIT PAPER NUMBER 2828 MAIL DATE DELIVERY MODE 08/28/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte RAYMOND F. CYBULSKI, ROBERT A. BERGSTEDT, WILLIAM N. PARTLO, RICHARD L. SANDSTROM, and GON WANG ____________ Appeal 2010-000394 Application 11/173,955 Technology Center 2800 ____________ Before JOSEPH F. RUGGIERO, SCOTT R. BOALICK, and ERIC B. CHEN, Administrative Patent Judges. RUGGIERO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection of claims 1-16. Claims 17-32 have been indicated by the Examiner to contain allowable subject matter, but are objected to as being dependent on rejected claims. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2010-000394 Application 11/173,955 2 Rather than reiterate the arguments of Appellants and the Examiner, reference is made to the Brief (filed June 10, 2008) and the Answer (mailed Oct. 6, 2008). Appellants’ Invention Appellants’ invention relates to a line narrowed gas discharge laser system which includes a dispersive center wavelength selective element, a beam expander having a plurality of refractive elements, and a refractive element positioning mechanism. The dispersive center wavelength selection element and the beam expander are aligned with each other and with a housing containing at least the dispersive center wavelength selection element. Further included is a housing positioning mechanism which positions the housing with respect to an optical axis of the gas discharge laser system See generally Spec. 2:24-3:9. Claim 1 is illustrative of the invention and reads as follows: 1. A line narrowed gas discharge laser system comprising a dispersive center wavelength selective element; a beam expander comprising a plurality of refractive elements; a refractive element positioning mechanism positioning at least one of the refractive elements to modify an angle of incidence of a laser light beam on the dispersive center wavelength selection element; each of the dispersive center wavelength selection element and the beam expander being aligned with each other and with a housing containing at least the dispersive center wavelength selection element; a housing positioning mechanism positioning the housing with respect to an optical axis of the gas discharge laser system. The Examiner’s Rejection The Examiner relies on the following prior art reference to show Appeal 2010-000394 Application 11/173,955 3 unpatentability: Wakabayashi US 5,802,094 Sep. 1, 1998 Claims 1-16, all of the appealed claims, stand rejected under 35 U.S.C. § 102(b) as being anticipated by Wakabayashi. ANALYSIS Appellants’ arguments with respect to independent claim 1 focus on the contention that Wakabayashi does not disclose a housing positioning mechanism which positions the line narrowing module (LNM) with respect to the laser system optical axis as claimed. According to Appellants, the Examiner erred in determining that Wakabayashi necessarily includes a housing positioning mechanism as illustrated by the connecting lines between the laser system 20 and the LNM 50 in Wakabayashi’s Figure 2. In support of their position that Wakabayashi has no need for a housing positioning mechanism, Appellants (Br. 5-6) direct attention to Wakabayashi’s disclosure of the use of an image rotator 60 to provide alignment between the components of the LNM and the rest of the laser system (col. 5, ll. 10-31). We find Appellants’ arguments unpersuasive of any error in the Examiner’s determination that Wakabayashi’s laser system and LMN components must necessarily have a positioning mechanism to properly position the LMN housing 50 with respect to the laser system 20 (Ans. 4 and 6). Wakabayashi, in fact, discloses that the laser chamber 20 and the LNM housing are, in fact, positioned with respect to each other (col. 5, ll. 17-18). Appeal 2010-000394 Application 11/173,955 4 Further, while not characterized as such in the Brief, Appellants have presented a “teach[ing] away” argument contending that Wakabayashi uses an image rotator 60 to align the LMN components with the incoming laser beam rather than the claimed housing positioning mechanism. We note, however, that whether a prior art reference “teaches away” from a claimed invention is irrelevant to a rejection based on anticipation.1 While Wakabayashi indeed states that the use of an image rotator is “clearly better” than an approach in which a housing positioning mechanism makes positional adjustments through rotation of the laser chamber and the LMN housing, such a housing positioning mechanism as claimed is nonetheless disclosed (col. 5, ll. 32-37). A prior art reference must be considered in its entirety, i.e., as a whole, including portions that would lead away from the claimed invention. W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984). In view of the above discussion, we conclude that the Examiner did not err in finding that all of the claimed limitations are present in the disclosure of Wakabayashi. Accordingly, the Examiner’s 35 U.S.C. § 102(b) rejection of independent claim 1, as well as dependent claims 2-16 not separately argued by Appellants, is sustained. CONCLUSION Based on the analysis above, we conclude that the Examiner did not err in rejecting claims 1-16 for anticipation under 35 U.S.C. § 102(b). 1 Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998) (“[T]he question whether a reference ‘teaches away’ from the invention is inapplicable to an anticipation analysis.”). Appeal 2010-000394 Application 11/173,955 5 DECISION We affirm the Examiner’s decision rejecting claims 1-16 under 35 U.S.C. § 102(b). 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) (2010). AFFIRMED gvw