Ex Parte Lakkapragada et al - Page 5

                Appeal 2006-2870                                                                              
                Application 10/401,509                                                                        
                      We further find to be without merit Appellants’ arguments (Br. 9)                       
                which rely on the Hobbs reference, incorporated by reference at page 10,                      
                line 26 of the Specification, as disclosing that scatterometry may include                    
                measuring diffraction efficiency of a test structure.  As pointed out by the                  
                Examiner (Answer 5),  Hobbs discloses the measurement of diffraction                          
                efficiency to determine the line dimension of a wafer in a photolithography                   
                process, not to determine the overlay between two periodic structures.  We                    
                further agree with the Examiner that Appellants’ reliance (Specification                      
                11:4-7) on the Xu reference (WO 99/45340)  does not overcome the                              
                inadequacies of the disclosure since a description of measuring diffraction                   
                efficiency, which is essential material to Appellants’ claimed invention,                     
                cannot be incorporated by reference to patents or applications published by                   
                foreign countries or a regional patent office.1                                               
                      We also find no error in the Examiner’s reliance (Answer 6-7) on In                     
                re Petering, 301 F.2d 676, 679, 133 USPQ 275, 278 (CCPA 1962) and In re                       
                Sivaramakrishnan, 673 F.2d 1383, 1384, 213 USPQ 441, 442 (CCPA 1982)                          
                as support for the Examiner’s position as to the inadequacy of Appellants’                    
                disclosure in providing support for the claimed measurement technique                         
                species of detecting diffraction efficiency.  Appellants’ arguments (Br. 11-                  
                16; Reply Br. 2-4) contend that the examples of various measurement                           
                devices and resist properties provided in the Specification constitute a                      
                                                                                                             
                1 We make the observation that, even if the disclosure of the Xu reference                    
                were properly incorporated into the Appellants’ Specification, the                            
                deficiencies in the original disclosure would not be overcome.  In our view,                  
                the disclosure of Xu is directed to, at best, the measurement of diffraction                  
                efficiency to analyze the diffraction properties of a single layer structure, not             
                to the detection of a lateral shift among plural layers of a multi-layer                      
                structure as claimed.                                                                         
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