Appeal 2007-3372
Application 10/651,351
argument that one of ordinary skill in the art would not have been led to
combine Yasuzato with Takahashi in a manner to arrive at the subject matter
of representative claim 1 for substantially the reasons stated by the Examiner
(Answer 6-8). Indeed, Takahashi’s disclosure of a focus position correction
means to allow for adjustment of the focus position to a best (optimum)
focus position would have reasonably led one of ordinary skill in the art to
an approximately mid-depth of the photoresist layer focus position upon
routine experimentation by itself, much less as a result of the combined
teachings of Yasuzato therewith. In this regard, we note that Takahashi
recognized that the resist material should be taken into account in adjusting
the spherical aberration (Takahashi, col. 1, ll. 27-48).3 This would
reasonably have suggested adjusting to a focus position for the altered image
projection at the photoresist that would include focus positions in the
photoresist layer, including positions proximate the middle of the
photoresist. After all, Takahashi’s purpose in adjusting the focus position is
to produce a mask pattern image in a photoresist via projection exposure.
Hence, one of ordinary skill in the art would have recognized that the
photoresist location of Takahashi, including a mid-depth location thereof, is
clearly within the locus where the focus position of the altered mask pattern
3 Also, we note Appellant’s admissions in the Specification and drawing
Figures with regard to the prior art projection (focus) of an altered mask
image at a resist coated substrate for compensating for spherical aberration
(Specification ¶¶ 0004 -0007; Figs, 1 and 2). It is axiomatic that admitted
prior art in an applicant's Specification may be used in determining the
patentability of a claimed invention and that consideration of the prior art
cited by the Examiner may include consideration of the admitted prior art
found in an applicant's Specification. In re Nomiya, 509 F.2d 566, 570-571,
184 USPQ 607, 611-612 (CCPA 1975).
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