DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of claims
The amendment to claims filed on 11/17/2025 and 12/11/2025 is acknowledged. Claims 1 is amended on 11/17/2025 and 12/11/2025. Currently, claims 1-5, 9, 11, 13-15, 19-21, 25 and 27 are pending in the application.
Previous 112 rejections are withdrawn in view of the above amendment.
Previous prior art rejection is modified to address the above amendment and to clarify the examiner’s position.
Claims 1-5, 9, 11, 13-15, 19-21, 25 and 27 are rejected. See the rejection below.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-5, 9, 11, 13-15, 19-21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitations “the at least three layers” in line 17 and “the three layers” in lines 17-18. There is insufficient antecedent basis for the limitations in the claim.
As amended, claim 1 recites the limitation "the fourth layer" in line 24. There is insufficient antecedent basis for this limitation in the claim. It is unclear what “the fourth layer” is being referred to.
Claims 2-5, 9, 11, 13-15, 19-21 are rejected on the same ground as claim 1.
For the purpose of this office action, the fourth layer is construed as the fourth partial cell.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5, 7, 9, 11, 13-15, 19-21 and 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over Wanlass (US 2006/0144435) in view of Bechiri et al. (“Electronic band structure calculations for GaxIn1-xAsyP1-y alloys lattice matched to InP”)
Regarding claims 1, and 25, Wanlass discloses a multijunction solar cell comprising at least three partial cells (or subcells, fig. 1) including a first partial cell (LM subcell 1), a second partial cell (or LM subcell 2), a third partial cell (or LMM subcell 18) and optional addition lattice-mismatched subcell indicated by the three dots and bracket (32) between the LMM subcell (18) and the contact layer (36, see [0027]); and a metamorphic buffer (see transparent compositionally graded layer 22, fig. 1) between the second partial cell (LM subcell 2) and the third partial cell (LMM subcell 18, see fig. 1);
wherein:
the first partial cell (see LM subcell 1, fig. 1) is a first layer (12) having a bandgap of Eg1 and lattice matched (or LM) to the substrate (20) such GaAs substrate (see fig. 1, and explanation of LM in [0035]);
the second partial cell (see LM subcell 2) is a second layer (14) having a band gap Eg2<Eg1 (see LM subcell 2, fig. 1) and lattice matched (LM) to the substrate GaAs (see fig. 1);
the third partial cell (see LMM subcell) is a third layer (18) having a bandgap of about 1eV and lattice mismatched (or LMM) layer to the substrate GaAs (see fig. 1);
the metamorphic buffer (or the transparent compositionally graded layer 22) is graded to provide transition from the 5.65 Å lattice constant of the GaAs as well as of the second layer (or the lattice match -LM subcell 2 – or second LM subcell) to the lattice constant of third partial cell (or LMM subcell 18, see [0035] and [0039]);
and a fourth partial cell (or optional addition lattice-mismatched subcell indicated by the three dots and bracket 32) having a fourth layer (or second LMM subcell layer).
Wanlass teaches the lattice constant of GaAs substrate is 5.65 Å (see [0035]), and choosing the semiconductor having lattice-matched (LM) to the GaAs substrate by drawing a line straight up from the lattice constant of the GaAs substrate (see the LM to GaAs line in fig. 2) through the semiconductor compound composition having at least Ga, In, As and P (see fig. 2); and exemplifies using GaxIn1-xP having energy band gap of 1.9eV for the first layer (or LM subcell 1), GaAs having energy band gap of 1.4eV for the second layer (or LM subcell 2), and GaxIn1-xAs having band gap (64) of 1eV and a lattice constant of 5.78 Å (see fig. 2, [0039]) for the third layer (or LMM subcell layer 18, see table II). As such, Wanlass teaches:
the first layer being a compound having at least the elements Ga, In, and P (e.g. GaxIn1-xP) to have an energy band gap (Eg1) of 1.9eV that is greater than 1.75eV and the lattice constant of 5.65Å (or lattice matched with the GaAs substrate), which is right within the claimed range of 5.635 Å to 5.675 Å;
the second layer being a compound having at least the elements Ga and As (e.g. GaAs) to have an energy band gap (Eg2) of 1.4eV that is right within the claimed range of 1.35eV and 1.70eV, and the lattice constat of 5.65 Å (or lattice matched with the GaAs substrate, or having the same lattice constant as the GaAs substrate) that is right within the claimed range of 5.635 Å to 5.675 Å; and
the third layer of a compound having at least three elements Ga, In, and As (e.g. GaxIn1-xAs) to have an energy band gap of 1.0eV and lattice constant of 5.78 Å greater than 5.700 Å.
Wanlass shows there is no direct semiconductor bond is formed between any of the two partial cells (12/14/18) of the solar cell stack (see fig. 4), and teaches there is no direct semiconductor bond being used between any of the two partial cells in the examples (see [0064-0065]).
Wanlass exemplifies the thickness of the at least three layer is greater than 100nm (see examples in [0064-0065]), and teaches the three layers are designed as part of the emitter (n-type) and as part of the base (p-type, see fig. 4, examples and table II).
Wanlass also exemplifies the metamorphic buffer layer (or the transparent compositionally graded layer) to be step graded to have nine compositional steps (see examples described in [0064]), or a sequence of nine layers, which is right within the claimed range of at least three layers.
Wanlass teaches the LMM subcell having a bandgap of less than 1.4eV ([0034]), 0.8-12eV ([0043]) and using GaxIn1-xAsP for the LMM subcell (see table V). Wanlass does not explicitly teaches the fourth layer (or the optional addition lattice-mismatched subcell indicated by the three dots and bracket 32 in fig. 1, or the second LMM layer) consisting of a compound with at least the elements of Ga, In, As and P having a phosphorus content of greater than 1% and less than 35% and an indium content of greater than 1%.
Bechiri et al. discloses using GaxIn1-xAsyP1-y lattice matched to InP (or lattice mismatched – LMM to GaAs) having a phosphorous content of greater than 1% and less than 35% (or y=0.65 to 0.99) and indium content of greater than 1% (or x =< 0.99) having a band gap of less than 1.0eV (or the band gap of the third layer -GaxIn1-xAs) in Figures 1-3.
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to modify the multi-junction solar cell GaInP (LM)/GaAs (LM)/GaInAs (LMM) of Wanlass by using GaxIn1-xAsyP1-y having a phosphorus content of greater than 1% and less than 35% and indium content of greater than 1% having a lattice mismatched (LMM) to GaAs substrate and band gap of less than 1.0 eV as taught by Bechiri et al as the third layer (or the LMM subcell)., because Wanlass explicitly suggests using material having band gap less than 1.4eV or low range of band gap (0.8-1.2eV) and using GaInAsP material for the lattice mismatched (or second LMM) partial cell (see table V). Such modification would involve nothing more than use of known material for its intended use in a known environment to accomplish entirely expected result. International Co. v. Teleflex Inc. (KSR), 550 U.S. 398, 82 USPQ2d 1385 (2007). The Courts have held that the selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960) (See MPEP 2144.07).
Regarding claims 2 and 3, modified Wanlass discloses a multijunction solar cell according to claim 1 above, wherein Wanlass teaches the first and second layers are latticed matched with GaAs (see tables II-V), or the lattice constant of the first layer and the lattice constant of the second layer is 5.65 Å (see claim 1 above and table II), which are within the claimed ranges of between 5.640 Å and 5.670 Å or between 5.645 Å and 5.665 Å.
Regarding claim 4, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein Wanlass discloses the first layer and the second layer are lattice matched (see LM dotted line in fig. 2), or the lattice constant of the first layer differs from the lattice constant of the second layer by less than 0.2%.
Regarding claim 5, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein Wanlass discloses the lattice constant of the third layer is 5.78 Å (see claim 1 above), which is greater than 5.730 Å.
Regarding claim 9, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein Wanlass discloses the multi-junction solar cell has a fourth subcell (see 32, or additional LMM subcells note in fig. 1), the fourth partial cell having a fourth layer of a compound with at least the elements GaInAs (see the second LMM in table V) and an energy band gap of the fourth layer (or the second LMM layer) being 0.2 eV smaller than an energy band gap of the third layer (or the first LMM layer). Wanlass also teaches each subcell includes a base and an emitter, and the thickness of each subcells is greater than 100 nm with the thickness increasing toward the lattice mismatched subcells and the first subcell being the thinnest (see [0064]).
Regarding claim 11, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein Wanlass further discloses a semiconductor mirror (or back surface reflector BSR) arranged below the lowest partial cell with the lowest energy band gap (see figs. 3A-D and 8, [0063]. It is noted that lowest energy bandgap partial cell is the bottom partial cell in the final product produced by an inverted monolithic process).
Regarding claim 13, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein Wanlass teaches the multi-junction solar cell has no Ge partial cell (see [0064]).
Regarding claim 14, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein the fourth subcell having a lattice constant matched InP (see claim 1 above), or a lattice constant of 5.8687Å (see table 2 of Bechiri et al.) which is lattice mismatched with the third layer having a lattice constant of 578Å (see claim 1 above). Wanlass teaches adding a fourth subcell of LMM (see fig. 1, table V) and each LMM subcell has a corresponding graded layer (see [0063]). That is, Wanlass teaches a second metamorphic buffer (or compositionally graded layer) is formed between the third subcell and the fourth subcell.
Regarding claim 15, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein Wanlass further teaches a fifth subcell is provided (see tables IV-V).
Regarding claim 19, modified Wanlass discloses a multi-junction solar cell as in claim 1 above, wherein Wanlass discloses the base layer for the first and second partial cells are 1.2m and 2.5m, respectively ([0064]). In other words, Wanlass teaches the thickness of the first layer (e.g. base layer) of the first partial cell and the second layer (e.g. base layer) of the second partial cell is greater than 0.8m.
Regarding claim 20, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein Wanlass the metamorphic buffer layer is formed directly between the second partial cell (or last LM cell) and the third partial cell (or first LMM subcell, see [0064], table II).
Regarding claim 21, modified Wanlass discloses a multi-junction solar cell according to claim 1 above, wherein Wanlass discloses the second partial cell (or the last LM subcell) and the third partial cell (or the first LMM subcell) are formed directly on the metamorphic buffer layer (see figs. 4 and 7, and [0064], table II).
Regarding claim 25, Wanlass discloses a multijunction solar cell comprising:
a first partial cell having a bandgap of Eg1 (see LM – or lattice matched – subcell 1 fig. 1) is a first layer (12, fig. 1);
a second partial cell having a band gap Eg2<Eg1 (see LM subcell 2, fig. 1) is a second layer (14);
a third partial cell having a bandgap of about 1eV is a third layer (see LMM – or lattice mismatched subcell of layer 18, see fig. 1);
a fourth partial cells (see additional LMM subcell indicated by layer 32, fig. 1, [0027]); and
a metamorphic buffer (see compositionally graded layer 22 in fig. 1, or a transparent, compositional step graded GaInP layer in examples) formed between the second partial cell (14) and the third subcell (18, see fig. 1),
a metamorphic buffer (compositionally graded layer 22 in fig. 1, or a transparent, compositional step graded GaInP layer in examples) formed between the second partial cell (14) and the third subcell (18, see fig. 1),
wherein
each of the partial cell has an emitter and a base (see [0059], examples and more specifically [0064]) and is homojunction ([0059],
no semiconductor bond is formed between two partial cells of the stack (see [0060] as Wanlass teaches the semiconductor layers are formed by epitaxial growth process, and not semiconductor bond process) and no substrate is arranged between two partial cells of the stack (see fig. 1 as Wanlass shows the substrate is arranged at the end of the stack and not between two partial cells of the stack),
the first partial cell (12), the second partial cell (14), the third partial cell (18), the fourth partial cell (or additional cell represented by reference number 32, fig. 1) and the metamorphic buffer layer are stacked monolithically (see fig. 1, [0011-0012]),
the thickness of the three layers (or the subcells) is greater than 100nm (see [0064]).
Wanlass teaches using III-V alloys material having selected band gap and the corresponding lattice constant from fig. 2 for the solar cell ([0020]), wherein the bandgap of the LM cells (or 12 or 14) having lattice matched – LM – with the GaAs or Ge substrate (see [0039] and [0059]), and the lattice constant of GaAs substrate is 5.65Å ([0035]). In other words, the lattice constant of the first layer and the second layer is 5.65Å (see [0035] and [0039]), which is right within the claimed range of 5.635 Å and 5.675 Å.
Wanlass exemplifies the metamorphic buffer formed between the second partial cell (LM subcell 2 of layer 14) and the third partial cell (LMM subcell 3 of layer 18) in a solar cell having three partial cells (or three subcells, see table II and Fig. 7), in which the first layer (or LM subcell 1 of layer 12) is of a compound having at least the elements Ga, In and P (or GaxIn1-xP) having a band gap of 1.9eV (see table II), a second layer (or LM subcell 2 of layer 14) of a compound having at least the elements GaAs (or GaAs) having a band gap of 1.4eV, and a third layer (or LMM subcell 3 or subcell 18) of a compound having at least the elements Ga, In and As (or GaxIn1-xAs) having a band gap of 1.0 eV (see table II) and having a band gap of 5.78 Å (see [0039]). 1.9eV is right within the claimed range of greater than 1.75eV, 1.4eV is right within the claimed range of 1.35eV and 1.7eV, 1.0eV is right within the claimed range of less than 1.25eV, and 5.78 Å is right within the claimed range of greater than 5.700 Å.
Wanlass also teaches the metamorphic buffer (or compositionally step graded GaInP) has a sequence of nine layers ([0064]) which is right within the claimed range of at least three layers, wherein the lattice constant of the metamorphic buffer layers in the sequence increase in a direction towards the third partial cell (e.g. from 5.65 Å of LM cell to 5.78 Å LMM cell, see [0027], [0035-0036], [0064], fig. 2 and [0039]).
Wanlass teaches the LMM subcell having a bandgap of 0.8-12eV ([0043]) and using GaxIn1-xAsP for the LMM subcell (see table V). Wanlass does not explicitly provide an example including the third partial cell of the third layer (or the first LMM subcell) or fourth partial cell of a fourth layer (or the second LMM subcell) in the solar cell having the buffer layer between the second partial cell (14) and the third partial cell (18) such that the fourth layer consisting of a compound with at least the elements of GaInAsP having a phosphorus content of greater than 1% and less than 35% and an indium content of greater than 1%.
Bechiri et al. discloses using GaxIn1-xAsyP1-y lattice matched to InP (or lattice mismatched – LMM to GaAs) having a phosphorous content of greater than 1% and less than 35% (or y=0.65 to 0.99) and indium content of greater than 1% (or x =< 0.99) having a band gap of less than 1.0eV (or the band gap of the third layer -GaxIn1-xAs) in Figures 1-3.
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to modify the multi-junction solar cell GaInP (LM)/GaAs (LM)/GaInAs (LMM) of Wanlass by incorporating a fourth partial cell of a fourthly, or the second LMM subcell on top of the first LMM subcell GaInAs, by using GaxIn1-xAsyP1-y having a phosphorus content of greater than 1% and less than 35% and indium content of greater than 1% having a lattice mismatched to GaAs substrate and band gap of less than 1.0 eV as taught by Bechiri et al., because Wanlass explicitly suggests including additional lattice mismatched partial cell with lower band gap (or subcell 32, see fig. 1, [0027], [0044], [0047]) and using GaInAsP material for the lattice mismatched (LMM) partial cell (see table V). Such modification would involve nothing more than use of known material for its intended use in a known environment to accomplish entirely expected result. International Co. v. Teleflex Inc. (KSR), 550 U.S. 398, 82 USPQ2d 1385 (2007). The Courts have held that the selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960) (See MPEP 2144.07).
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Wanlass (US 2006/0144435) in view of Roberts (US 2011/0180129).
Regarding claim 25, Wanlass discloses a multijunction solar cell comprising:
a first partial cell having a bandgap of Eg1 (see LM – or lattice matched to the substrate such as GaAs– subcell 1 fig. 1) is a first layer (12, fig. 1);
a second partial cell having a band gap Eg2<Eg1 (see LM subcell 2, fig. 1) is a second layer (14);
a third partial cell having a bandgap of about 1eV is a third layer (see LMM – or lattice mismatched subcell of layer 18, see fig. 1);
a fourth partial cells (see additional LMM subcell indicated by layer 32, fig. 1, [0027]); and
a metamorphic buffer (see compositionally graded layer 22 in fig. 1, or a transparent, compositional step graded GaInP layer in examples) formed between the second partial cell (14) and the third subcell (18, see fig. 1),
a metamorphic buffer (compositionally graded layer 22 in fig. 1, or a transparent, compositional step graded GaInP layer in examples) formed between the second partial cell (14) and the third subcell (18, see fig. 1),
wherein
each of the partial cell has an emitter and a base (see [0059], examples and more specifically [0064]) and is homojunction ([0059],
no semiconductor bond is formed between two partial cells of the stack (see [0060] as Wanlass teaches the semiconductor layers are formed by epitaxial growth process, and not semiconductor bond process) and no substrate is arranged between two partial cells of the stack (see fig. 1 as Wanlass shows the substrate is arranged at the end of the stack and not between two partial cells of the stack),
the first partial cell (12), the second partial cell (14), the third partial cell (18) and the metamorphic buffer layer are stacked monolithically (see fig. 1, [0011-0012]),
the thickness of the three layers (or the subcells) is greater than 100nm (see [0064]).
Wanlass teaches using III-V alloys material having selected band gap and the corresponding lattice constant from fig. 2 for the solar cell ([0020]), wherein the bandgap of the LM cells (or 12 or 14) having lattice matched – LM – with the GaAs or Ge substrate (see [0039] and [0059]), and the lattice constant of GaAs substrate is 5.65Å ([0035]). In other words, the lattice constant of the first layer and the second layer is 5.65Å (see [0035] and [0039]), which is right within the claimed range of 5.635 Å and 5.675 Å.
Wanlass exemplifies the metamorphic buffer formed between the second partial cell (LM subcell 2 of layer 14) and the third partial cell (LMM subcell 3 of layer 18) in a solar cell having three partial cells (or three subcells, see table II and Fig. 7), in which the first layer (or LM subcell 1 of layer 12) is of a compound having at least the elements Ga, In and P (or GaxIn1-xP) having a band gap of 1.9eV (see table II), a second layer (or LM subcell 2 of layer 14) of a compound having at least the elements GaAs (or GaAs) having a band gap of 1.4eV, and a third layer (or LMM subcell 3 or subcell 18) of a compound having at least the elements Ga, In and As (or GaxIn1-xAs) having a band gap of 1.0 eV (see table II) and having a band gap of 5.78 Å (see [0039]). 1.9eV is right within the claimed range of greater than 1.75eV, 1.4eV is right within the claimed range of 1.35eV and 1.7eV, 1.0eV is right within the claimed range of less than 1.25eV, and 5.78 Å is right within the claimed range of greater than 5.700 Å.
Wanlass also teaches the metamorphic buffer (or compositionally step graded GaInP) has a sequence of nine layers ([0064]) which is right within the claimed range of at least three layers, wherein the lattice constant of the metamorphic buffer layers in the sequence increase in a direction towards the third partial cell (e.g. from 5.65 Å of LM cell to 5.78 Å LMM cell, see [0027], [0035-0036], [0064], fig. 2 and [0039]).
Wanlass teaches using GaxIn1-xAsyP1-y as the second partial cell (or LM cell, see example 1 of table III).
Wanlass does not explicitly teach using GaIn1-xAsyP1-y with y being 0.5 as claimed.
Roberts refers to a semiconductor handbook that GaInAsP can be matched to GaAs for y value (or As content) according to Ga(1+y)/2.08In1-(1+y)/2.08AsyP1-y from y=0 to y=1 providing the band gaps in the range of about 1.42 eV to about 1.9eV, and the y value (or As content) is from 0.2-0.5 (or the phosphorous content of 1-y to be 0.5 to 0.8, or 50% to 80%) for the GaInAsP to be lattice matched within a few percent such as 2% ([0074-0075]), or for the lattice constant of GaInAsP to be in the range of 5.635 Å and 5.675 Å comparing to lattice constant 5.65 Å of GaAs. In other words, Roberts describes it is known in the art (or according to the handbook) that the phosphorus content (based on the total content of the V atoms, or As and P) must be high as 50-80% in order for the GaInAsP compound having a lattice constant to be 5.635 Å and 5.675 Å, or matching within 2% of the lattice constant of 5.65 Å of GaAs.
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have used Ga1-xInxAs1-yPy with y being 0.5 (or the content of phosphorous to be 0.5) as taught by Roberts for the second partial cell being a second layer of the solar cell of Wanlass; because Wanlass explicitly suggests using GaxIn1-xAsyP1-y that is lattice matched with the substrate GaAs, and Roberts teaches Ga1-xInxAs1-yPy with y being 0.5 (or the content of phosphorous to be 0.5) is lattice matched to GaAs. Such modification would involve nothing more than use of known material for its intended use in a known environment to accomplish entirely expected result. International Co. v. Teleflex Inc. (KSR), 550 U.S. 398, 82 USPQ2d 1385 (2007). The Courts have held that the selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960) (See MPEP 2144.07).
Response to Arguments
Applicant's arguments filed 11/17/2025 and 12/11/2025 have been fully considered but they are not persuasive.
Applicant argues Wanlass in view of Bechiri does not teach the limitation “wherein at least the second layer or the third layer or the second and third layers consist of a compound with at least the elements Ga In, As, and P has a phosphorus content greater than 1% and less than 35% and an indium content greater than 1%” as claimed in claims 1 and 25, because Bechiri teaches the band gap of InGaAsP are calculated and the lattice constant of InP is far above the claimed range. Applicant then alleges the examiner has mischaracterized the teaching of Bechiri, and argues one skilled in the art would not receive any teaching of the claimed invention from the theoretical calculations of Bechiri, and quaternary materials are very complex and cannot be extrapolated. Applicant then concludes that the teaching of Bechiri would not be used for its intended purpose.
The examiner replies that the limitation “wherein at least the second layer or the third layer or the second and third layers consist of a compound with at least the elements Ga In, As, and P has a phosphorus content greater than 1% and less than 35% and an indium content greater than 1%” is not claimed since claim 1 is amended on 12/11/2025 to recite “at least the fourth layer consist of a compound with at least the element Ga, In, As, and P and has a phosphorous content greater than 1% and less than 35% and an indium content greater than 1%”. The bandgap and lattice constant of the fourth layer are not claimed, nor the method of how to obtain the bandgap and lattice constant is not claimed. Applicant does not even disclose how the band gap is obtained, directly or indirectly (e.g. calculated). Applicant’s arguments appear to be arguments of counsel. It is well settled that arguments of counsel cannot take the place of factually supported objective evidence. See, e.g., In re Huang, 100 F.3d 135, 139-40 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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THANH-TRUC TRINH
Primary Examiner
Art Unit 1726
/THANH TRUC TRINH/Primary Examiner, Art Unit 1726