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.
5
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