Ex Parte Megens

Board of Patent Appeals and Interferences

May 30, 2012

11214058 (B.P.A.I. May. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte HENRICUS JOHANNES LAMBERTUS MEGENS
____________

Appeal 2010-002142
Application 11/214,058
Technology Center 1700
____________

Before ADRIENE LEPIANE HANLON, PETER F. KRATZ, and MARK
NAGUMO, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 3, 4, and 7-15. We have jurisdiction
pursuant to 35 U.S.C. § 6.

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Application 11/214,058

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Appellant’s claimed invention is directed to a device manufacturing
method, a device made thereby, and a mask. Appellant discloses that color
filters are applied to image sensor devices during the manufacture of
charged coupled image sensor devices (CCD sensors) and/or complimentary
metal-oxide-semiconductor image sensor devices (CMOS sensors) (Spec.
0003). Appellant indicates that it is desirable to provide improved accuracy
of alignment of a substrate relative to a mask during such color filter
manufacturing steps (Spec. 0007). In Appellant’s claimed method, an
alignment mark is formed that is said to have contrast provided by a change
in step height of a second applied layer of a second radiation sensitive color
material that is employed in forming the device (Spec. para. 0049; Fig. 5b).
The claimed method is disclosed as providing for such alignment mark
features outside the area of a product die whereby the accurate alignment of
a substrate in a lithographic apparatus relative to a mask may be achieved
(Spec. paras. 0004-0008, 0033, 0042, and 0050-0054).
The mask used by Appellant is described as having a different
patterning structure than previously used masks (Spec. 0033 and 0053).
According to Appellant, the mask is provided with a pattern structure that
endows a projected beam of radiation with a pattern for forming alignment
marks in areas outside the dies (Spec. 0053).
Claims 1 and 14 are illustrative and reproduced below:
1. A device manufacturing method comprising:

projecting a patterned beam of radiation onto a substrate that is
covered in a first layer of colored radiation sensitive material, the pattern of
said patterned beam including a first pattern for use in forming device
features in areas of product die and a second pattern for use in forming
features of an alignment mark outside the areas of the product die;
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developing said radiation sensitive material such that areas of an
irradiated portion of the first material remain or are removed and, in an
opposite manner, areas of an unirradiated portion of the first material are
removed or remain;
applying a second layer of radiation sensitive material wherein said
second layer of radiation sensitive material has a different color than the
color of said first radiation sensitive material;

projecting a second patterned beam of radiation onto said second
radiation sensitive material, and

developing said second radiation sensitive material such that areas of
an irradiated portion of the second material remain or are removed and, in an
opposite manner, areas of an unirradiated portion of the second material are
removed or remain,

wherein said alignment mark, after developing and application of the
second radiation sensitive material, has a pattern which has contrast due to a
step change in height of the second radiation sensitive material.

14. A mask for use in the method of claim 1, comprising patterning
structures for endowing a projection beam of radiation with a pattern that is
useful in forming color filters on a die or dies on the substrate and patterning
structures for endowing said projection beam of radiation with a pattern that
is useful in forming the alignment mark in areas that are outside said dies.

The Examiner relies on the following prior art reference as evidence
in rejecting the appealed claims:
Kim 5,935,741 Aug. 10, 1999
Aoki 6,136,481 Oct. 24, 2000
Yeh 2002/0102812 A1 Aug. 01, 2002
Takagi ‘126 (as translated) JP 2000-098126 Apr. 07, 2000
Takagi ‘617 (as translated) JP 2001-033617 Feb. 09, 2001

The Examiner maintains the following grounds of rejection:
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1. Claims 1, 3, 7, 9 and 11-14 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Kim.
2. Claim 14 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Aoki.
3. Claim 14 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by JP ‘617.
4. Claim 13 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by or, in the alternative under 35 U.S.C. § 103(a) as being
obvious over either Aoki or JP ‘617.
5. Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kim in view of Yeh.
6. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kim in view of Applicant’s discussion of the prior art in
the Specification.
7. Claim 15 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kim in view of JP ‘126.
8. Claims 4 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kim in view of JP ‘617.
We reverse Rejections 1 and 4-8. We affirm Rejections 2 and 3. Our
reasoning follows.

Anticipation Rejection over Kim (Rejection 1)
To anticipate under § 102, the prior art reference “must not only
disclose all elements of the claim within the four corners of the document,
but must also disclose those elements arranged as in the claim.” Net
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MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008)
(citation and internal quotation marks omitted).
Here, the Examiner has not satisfied the burden of establishing a
prima facie case of anticipation with respect to the first stated rejection.
For example, rejected claim 1 requires a method wherein an alignment
mark formed outside the areas of the product die has features made with a
patterned first layer of color sensitive material and a step change in height
contrast feature made by developing and applying a second radiation
sensitive material having a different color to the alignment mark.
In asserting that Kim discloses a method for forming a color filter that
anticipates Appellant’s claimed method, the Examiner relies on the second
align key pattern 23’ of Kim as corresponding to the alignment mark of the
claimed invention after developing and application of a second radiation
sensitive material (Ans. 3 and 4; Appellant’s claim 1).1 As correctly argued
by Appellant, however, the second align key pattern 23’ relied upon by the
Examiner is disclosed by Kim as being an align key pattern that “is formed
in an area different from the area where first align key pattern 22’ was
formed” (Kim, col. 4, ll. 13-18; Figs. 6 and 7; App. Br. 8 and 9; Reply Br. 4
and 52). Thus, the relied upon second align key pattern 23’ of Kim does not

1 The Examiner does not separately address rejected claims 13 and 14 in the
anticipation rejection over Kim, which claims are drawn to a device
manufactured by the method of claim 1 and a mask for use in the method of
claim 1, respectively. Accordingly, we focus on claim 1 in deciding this
appeal as to this ground of rejection.
2 The pages of the Reply Brief are not numbered. Our references to page
numbers in referring to the Reply Brief is based on assigning the page
number 1 to the first sheet and continuing to assign page numbers
sequentially to the following sheets.
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include features made with a patterned first layer of color sensitive material
and a step change in height contrast feature made by developing and
applying a second radiation color sensitive material thereto, as required by
claim 1.3
Consequently, we do not sustain the Examiner’s first stated
anticipation rejection, on this appeal record.

Rejections 5 through 8
The Examiner relies on Kim taken with other evidence in each of the
obviousness rejections 5 through 8, which rejections pertain to certain
dependent claims. However, the Examiner relies on the additional evidence
in each of these rejections for allegedly teaching additional features set forth
in the rejected dependent claims, not for curing the afore-discussed
deficiency in the base anticipation rejection of independent claim 1 over
Kim.
It follows that we shall reverse Rejections 5-8 for the reasons set forth
with respect to Rejection 1.

3 Kim teaches that a third align key pattern 24’ is formed in a region
different from the first and second align key patterns (col. 4, ll. 39-44; Fig.
8). Thus, the third align key pattern feature likewise does not include
features made with a patterned first layer of color sensitive material and a
step change in height contrast feature made by developing and applying a
second radiation color sensitive material thereto.
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Rejections 2 and 3
Claim 14 is drawn to a mask for use in the claim 1 method, which
mask comprises patterning structures for endowing a projection beam of
radiation with a pattern that is useful in forming color filters on a die or dies
on a substrate and patterning structures for endowing the projected radiation
beam with a pattern useful for forming the alignment mark in areas outside
the dies.
In rejection 2, the Examiner has found that Aoki discloses a mask for
use in patterning a red resist layer with a pattern that is used for forming red
color filters 24 and with a pattern for forming a red alignment mark 25 in an
area outside the color filter area via light (radiation) exposure, which light is
patterned via the mask patterns, such that the mask of Aoki corresponds to
the mask required by claim 14 (Ans. 4-5, 17, and 18); Aoki, abstract, col. 6,
ll. 5-36, col. 8, ll. 32-41; Fig. 1A). Consequently, the Examiner has
reasonably determined that the mask of Aoki comprises patterning structures
that correspond to the claimed patterning structures that would have been
capable of endowing a beam of radiation with a pattern useful for forming
color filters on a die and patterning structures that would have been capable
of endowing a beam of radiation with a pattern useful for forming an
alignment mark in another area as claimed.
Appellant has not established that the Examiner’s acknowledgement
that Aoki fails to disclose all of the features of Appellant’s claim 1 method,
including an alignment mark that has a pattern having a contrast due to a
step change in height of a second radiation sensitive material, has a
detrimental bearing on the Examiner’s anticipation position with respect to
claim 14. This is because claim 14 is drawn to a mask for use in the method
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of claim 1, not the method itself. In particular, Appellant’s argument to the
effect that Aoki does not form an alignment mark in accordance with the
claim 1 method for forming an alignment mark having a step change in
height feature does not explain why Aoki’s mask that is made for use in
forming both an alignment mark and color filter features is not capable of
being used in forming an alignment mark in accordance with Appellant’s
claim 1.
In this regard, we disagree with Appellant’s argument to the effect
that claim 14 requires every feature required by method claim 1 by virtue of
its reference thereto. After all, it is manifest that claim 14 is drawn to a
different statutory category of invention, a product (mask), than the category
of invention (process) that claim 1 is drawn to. The reference to claim 1 in
claim 14 merely recites an intended use for the mask. While that mask must
have “patterning structures” useful for forming the color filters and
patterning structures useful for forming the alignment mark that is outside of
the die or dies, claim 14 does not cover the process recited in claim 1.
Applicant’s claim construction raises indefiniteness issues because a
potential infringer could not be sure whether they were potentially liable for
infringement based on the process or on the mask. See IPXL Holdings,
L.L.C. v. Amazon.Com, Inc., 430 F.3d 1377, 1383—84, 77 USPQ2d 1140,
114_ (Fed. Cir. 2005) ("A single claim which claims both an apparatus and
the method steps of using the apparatus is indefinite under 35 U.S.C. 112,
second paragraph.") (case of first impression).
On this record, Appellant has not indicated any harmful error in the
Examiner’s anticipation rejection of claim 14 over Aoki.
Accordingly, we shall affirm Rejection 2.
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Concerning rejection 3, Appellant similarly argues that Takagi ‘617
does not disclose all of the features of the claim 1 method (App. Br. 12-13:
Reply Br. 7 and 8). However, as we indicated above with respect to the
rejection over Aoki, claim 14 is drawn to a mask, not a method.
Correspondingly, Appellant’s arguments respecting the features of method
claim 1 with respect to Rejection 3 do not persuade us of any harmful error
in the Examiner’s determination that Takagi ‘617 discloses a mask 5 that
corresponds to the required mask features of claim 14 (Ans. 5, 6, 18, and
19).
Accordingly, we affirm Rejection 3.

Rejection 4
Claim 13, which is drawn to a device manufactured in accordance
with the method of claim 1, requires the alignment mark features that result
from the claim 1 method, including an alignment mark having a step change
in height feature, as recited in claim 1 (Ans. 8).
Here, the Examiner has acknowledged that neither of Aoki or Takagi
‘617 provides a teaching respecting Appellant’s claimed alignment mark
features. Rather, the Examiner argues that the color filters of the applied
prior art correspond to the color filter produced by Appellant (id.).
However, this argument misses the mark in that the manufactured device of
claim 13 is directed to a product in accordance with the claim 1 method,
which product includes alignment mark features as provided for by the claim
1 method, as is argued by Appellant (App. Br. 13-15; Reply Br. 8 and 9).
It follows that we reverse the Examiner’s anticipation and
obviousness rejections of claim 13 over Aoki or Takagi ‘617 (Rejection 4).
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CONCLUSION/ORDER
The Examiner’s decision to reject claim 14 under 35 U.S.C. § 102(b)
as being anticipated by Aoki and to reject claim 14 under 35 U.S.C. § 102(b)
as being anticipated by JP ‘617 is affirmed. The Examiner’s decision to
reject claims 1, 3, 7, 9 and 11-14 under 35 U.S.C. § 102(b) as being
anticipated by Kim; to reject claim 13 under 35 U.S.C. § 102(b) as being
anticipated by or, in the alternative under 35 U.S.C. § 103(a) as being
obvious over either Aoki or JP ‘617; to reject claim 8 under 35 U.S.C. §
103(a) as being unpatentable over Kim in view of Yeh; to reject claim 10
under 35 U.S.C. § 103(a) as being unpatentable over Kim in view of
Applicant’s discussion of the prior art in the Specification; to reject claim 15
under 35 U.S.C. § 103(a) as being unpatentable over Kim in view of JP
‘126; and to reject claims 4 and 15 under 35 U.S.C. § 103(a) as being
unpatentable over Kim in view of JP ‘617 is reversed.
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-IN-PART

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