Ex Parte Kamenov et al

Patent Trial and Appeal Board

Aug 26, 2016

13112357 (P.T.A.B. Aug. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/112,357 05/20/2011
26161 7590 08/30/2016
FISH & RICHARDSON P,C (BO)
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
FIRST NAMED INVENTOR
Vladimir Kamenov
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
18239-0053002 7309
EXAMINER
PERSAUD, DEORAM
ART UNIT PAPER NUMBER
2882
NOTIFICATION DATE DELIVERY MODE
08/30/2016 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):
P ATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VLADIMIR KAMENOV, DANIEL KRAEHMER,
TORALF GRUNER, KARL-STEFAN WEISSENRIEDER,
REIKO FELDMANN, ACHIM ZIRKEL, ALEXANDRA PAZIDIS,
BRUNO THOME, and STEPHAN SIX1
Appeal2015-001308
Application 13/112,357
Technology Center 2800
Before ADRIENE LEPIANE HANLON, WESLEY B. DERRICK, and
JENNIFER R. GUPTA, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection under 35 U.S.C. § 102(b) of claims 9-11, 13-15, 23, and 27 over
Murata2 and under 35 U.S.C. § 103(a) of claims 1-8, 12, 16-22, 24-26, 28,
1 Carl Zeiss SMT GmbH is identified as the real party in interest. Appeal
Br. 1.
2 JP 2004-302113 A, published October 28, 2004. The Examiner relies on a
machine translation made of record, the status of which as prior art is not
contested by Appellants.
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Application 13/112,357
and 29 over Murata in view of Wegmann. 3 We have jurisdiction pursuant to
35 U.S.C. § 6.
We REVERSE.
BACKGROUND
Appellants' claimed invention is directed to optical systems in which
coatings are used to increase or reduce the reflectivity of optical elements.
Spec. Abstract. There are four independent claims-I, 9, 16, and 20.
Independent claims 1 and 9 are illustrative:
1. An optical system, comprising:
a plurality of optical elements; and
a plurality of antireflection coatings including a first
antireflection coating and a second antireflection coating,
wherein:
each of the plurality of optical elements supports at
least one of the plurality of antireflection coatings;
within a first incidence angle range, the first
antireflection coating has a polarisation-dependent
reflectivity which is greater for s-polarised light than for
p-polarised light;
within a second incidence angle range, the second
antireflection coating has a polarisation-dependent
reflectivity which is less for s-polarised light than for
p-polarised light;
the first and second antireflection coatings are
arranged in a beam path of projection light so that their
polarisation-dependent differences in reflectivity at least
partially compensate each other;
the first antireflection coating is different from the
second antireflection coating; and
the optical system is a microlithographic optical
system.
3 US 2004/0169836 Al, published September 2, 2004.
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9. An optical system, comprising:
a plurality of optical elements; and
a plurality of antireflection coatings including a first
antireflection coating and a second antireflection coating,
wherein:
each optical element supports at least one of the
plurality of antireflection coatings;
the first antireflection coating is configured so that,
within a first incidence angle range, p-polarised light
passes through the first antireflection coating with a
retardation relative to s-polarised light;
the second antireflection coating is configured so
that, within a second incidence angle range, s-polarised
light passes through the second antireflection coating
with a retardation relative to p-polarised light;
the first and second antireflection coatings are
arranged in a beam path of projection light so that their
polarisation-dependent retardation differences at least
partially compensate each other; and
the optical system is a microlithographic optical
system.
Appeal Br. (Claims Appendix) 9, 11-12 (formatting added).
Independent claim 16 is similar to claim 1 in that "each antireflection
coating has a polarisation-dependent reflectivity" and a "combination of
each of the plurality of antireflection coatings has a substantially
polarisation-neutral reflectivity." Claim 20 is similar to claim 9 in that "each
antireflection coating has polarisation-dependent behaviour with respect to
phase" and a "combination of each of the plurality of antireflection coatings
has a substantially polarisation-neutral behaviour with respect to phase."
DISCUSSION
Upon consideration of the record, we are persuaded that the Examiner
has failed to establish that Murata anticipates claims 9-11, 13-15, 23, and 2 7
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and has also failed to meet the burden of establishing that claims 1-8, 12,
16-22, 24-26, 28, and 29 are unpatentable for obviousness over Murata in
view of Wegmann. 4 We are, therefore, constrained to reverse the
Examiner's rejections. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)
("[T]he examiner bears the initial burden, on review of the prior art or on
any other ground, of presenting a prima facie case of unpatentability. ").
Anticipation of claims 9-11, 13-15, 23, and 27
On this record, we agree with Appellants that the Examiner has failed
to establish a prima facie case of anticipation. While it may well be that the
anti-reflection coatings disclosed by Murata are similar to those disclosed in
the instant Specification, the Examiner makes no explicit determination on
this record that they are the same or so similar to those according to claim 9
that the recited retardation of p-polarised and s-polarised light is inherent.
See generally Final Act.; Ans. In comparing the instant disclosure to that of
iviurata, the Examiner maintains merely that Figures 10 and 11 are
"essentially similar" to Murata's Figures 12, 18, 22, 24, and 32 and that the
coatings disclosed in Tables 1-5 are "similar" to those in Murata' s Tables 2
and 9-15. Ans. 7. We note further that Figures 10 and 11 differ
significantly in that while they include data as to retardation of s- and p-
polarised light, Murata's Figures 2 and 9-15 include only data as to
reflectance. It follows, accordingly, that while it may be that the anti-
reflection coatings disclosed in Murata likely include some that retard p-
polarised light and some that retards-polarised light, the Examiner has failed
4 We refer to the Final Office Action mailed October 25, 2013, the Appeal
Brief filed April 14, 2014, the Examiner's Answer mailed August 21, 2014,
and the Reply Brief October 21, 2014.
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Application 13/112,357
to establish that it necessarily is so and thus shift the burden to Appellants to
establish that it is not. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009)
(internal citations and quotations omitted) (In order to anticipate, a
"reference must disclose each and every element of the claimed invention,
whether it does so explicitly or inherently" with the elements "arranged or
combined in the same way as in the claim.").
Further, on this record, the Examiner has not established that the
optical elements in Murata's disclosed device include more than a single
type of antireflective coating composition. See generally Final Act.; Ans. In
this regard, the Examiner's determination that "the first and second
antireflection coatings (Table 1 -Table 15) are arranged ... [to] at least
partially compensate each other (as shown in Fig. 3-32)" is not properly
supported. Final Act. 3; Ans. 6-7). While Murata does disclose a plurality
of optical elements formed of many lenses (Murata ,-i 65, Fig. 2) and does
teach a plurality of antireflection coatings (Tables 1-15), the Examiner has
failed to direct us to any disclosure or teaching in Murata to support the
position that more than one antireflection coating composition is used, that
is, that there is a first antireflection coating having a first character and a
second having a second character that differs from the first in any manner.
Indeed, in maintaining the obviousness rejection over Murata in view of
Wegmann, the Examiner relies on Wegmann for "provid[ing] the concept of
applying at least two different antireflection coatings to the lenses in the
projection objective." Ans. 4.
For these reasons, to sustain the Examiner's rejection, we would be
required to rely on conjecture, which we will not do. In re Warner, 379 F.2d
1011, 1017 (CCP A 1967) ("The Patent Office has the initial duty of
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supplying the factual basis for its rejection. It may not ... resort to
speculation, unfounded assumptions or hindsight reconstruction to supply
deficiencies in its factual basis.").
Accordingly, on this record, we are constrained to reverse the
Examiner's anticipation rejection.
Obviousness of claims 1-8, 12, 16-22, 24-26, 28, and 29
The Examiner relies on Murata for its disclosure of different
antireflection coatings, as in the anticipation rejection, and relies on
Wegmann for, inter alia, teaching "fine adjustment of the overall [optical]
system is required in order to minimize the total error of the system" (Final
Act. 7, citing Wegmann ,-i 5), "provid[ing] the concept of applying at least
two different antireflection coatings to the lenses in the projection objective"
(Ans. 4; see also Final Act. 7) and teaching the use of antireflection coatings
to minimize the light losses in the system and to ensure adequate
transm1ss10n of the overall system (Final Act. 7-8, citing Wegmann iii! 34,
44, 53; see also Ans. 2-3). On the basis of these teachings, the Examiner
concludes it would have been obvious to one of ordinary skill in the art at
the time of the invention to use the at least two different antireflection
coatings of Murata. Final Act. 8; Ans. 2-3, 4.
On this record, we are not able to sustain the rejection for obviousness
over Murata in view of Wegmann. The Examiner does not direct us to any
disclosure in Murata for including different antireflection coatings and does
not explain how Wegmann's disclosure of using antireflection coatings-
including use of a second coating-to minimize light losses and ensure
adequate light transmission in an optical system would have led one of
ordinary skill in the art to select first and second antireflection coatings to
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"at least partially compensate" polarisation-dependent differences in
reflectivity (claim 1) or to select a plurality of antireflection coatings to
have, in combination, a substantially polarisation-neutral reflectivity
(claim 16) or substantially polarisation-neutral behaviors in respect to phase
(claim 20). Where Wegmann describes fine adjustments necessary for
optimizing optical systems as including a "plurality of different
manipulations on lenses or other optical elements" (Wegmann ,-i 6)-many
of which manipulations are wholly dissimilar to the use of antireflective
coatings-and we are directed to no teaching in Wegmann where the
characteristics of one antireflective coating is used to compensate for the
characteristics of another, we find the Examiner's proffered reasoning-to
minimize the light losses in the system and to ensure adequate transmission
of the overall system-insufficient to establish that the relied on teachings
would have led the skilled artisan to the claimed invention. See, e.g., Belden
Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015) ("[O]bviousness
concerns whether a skilled artisan not only could have made but would have
been motivated to make the combinations or modifications of prior art to
arrive at the claimed invention.") (emphasis in original). We decline to
scour the record in the first instance for facts that might support the
rejection, as our primary role is review, not examination de novo.
Accordingly, on this record, we are constrained to reverse the
Examiner's obviousness rejection.
CONCLUSION
The Examiner's rejection of claims 9-11, 13-15, 23, and 2 7 under
35 U.S.C. § 102(b) is REVERSED.
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The Examiner's rejection of claims 1-8, 12, 16-22, 24-26, 28, and 29
under 35 U.S.C. § 103(a) is REVERSED.
REVERSED
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