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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, “a AsH3 or PH3 injector inlet” must be shown (labeled) or the feature(s) canceled from the claim(s) with respect to Fig. 2, the elected embodiment. Also, “the plurality of AsH3 or PH3 injector outlets positioned radially in a circle” must be shown (labeled) or the feature(s) canceled from the claim(s) with respect to Fig. 2, the elected embodiment. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 5-6 and 8-14 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Examiner is unable to locate support for claim limitations “an AsH3 or PH3 injector inlet” and “the plurality of AsH3 or PH3 injector outlets positioned radially in a circle”. In order to expedite examination, the claims have been examined as written. Note: Examination as written is not a suggestion that support exists. Applicant should consider their overall disclosure and claims as presented and proceed accordingly.
Clarification and/or correction is requested.
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, 5-6 and 8-14 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. Any claim not specifically mentioned is rejected based on its dependence.
Claim 1 recites the limitation "the AsH3 or PH3 injector outlets”. There is insufficient antecedent basis for this limitation in the claim. In order to expedite examination, Examiner has assumed the claim was meant to reference “the plurality of AsH3 or PH3 outlets” to correspond with the feature as originally introduced and has examined accordingly. Note: Any assumption made by the Examiner is not a suggestion to amend in any particular way. Applicant should consider their overall disclosure and claims as presented and proceed accordingly.
Clarification and/or correction is requested.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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.
Claim(s) 1, 5-6 and 8-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Pub. No. 2002/0155713 to Tsvetkov et al in view of U.S. Patent Pub. No. 2017/0204533 to Schunemann et al. and U.S. Patent Pub. No. 2013/0098293 to Lee et al.
Regarding claim 1: Tsvetkov et al. disclose a reactor (Fig. 2, 200) capable of deposition of at least one layer of a semiconductor device using hydride vapor phase epitaxy (HVPE) substantially as claimed, wherein the reactor is capable of producing the at least one layer of the semiconductor device at a rate of greater than 300 µm/h at a pressure of about 1 atm. See, e.g., paras. 11 and 29.
The reactor may further comprise an injector inlet (portion of 223 and 224 connected to a gas source) capable of injecting AsH3 or PH3, a plurality of outlets (portions of 223 and 224 outletting to substrate) capable of outletting AsH3 or PH3; and source boats (227, 229, 231, 233, 235)). Additionally, Tsvetkov et al. teach that various materials may be used depending on the layers and structures that are to be fabricated (see, e.g., para. 30, 33 and 43).
However, Tsvetkov et al. fails to explicitly disclose that the plurality of AsH3 or PH3 outlets positioned radially around a growth substrate.
Schunemann et al. disclose providing arsine gas provided from a source (labeled AsH3) and through an injector inlet (portion of 24 connected to source) and a plurality of outlets positioned radially around a growth substrate (portion of 24 for outletting to substrate) provided in proximity to a deposition substrate in an HVPE method and apparatus for the purpose of, inter alia, producing a GaAs crystal with increased carrier lifetime (see, e.g., Figs. 5A-B, abstract, paras. 38-39, 42). In Fig. 5A, at least the outermost outlets of plurality of outlets are positioned radially around the growth substrate thereby meeting the claim limitation.
Thus, it would have been obvious to one of ordinary skill in the art before Applicant’s invention was effectively filed to have provided an injector inlet and a plurality of outlets positioned radially around the growth substrate of Tsvetkov et al. in order, inter alia, produce a GaAs crystal with increased carrier lifetime as taught by Schunemann et al.
Examiner notes that the claimed apparatus is capable of the plurality of recitations drawn to an intended use of the apparatus tied to various processing parameters (e.g., processing material identity, processing temperatures and resulting product) associated with a desired method that may be performed in the reactor. Additionally, Examiner notes the courts have ruled a claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987); expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim. Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969); and the inclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims. In re Young, 75 F.2d 966, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)).
Regarding, the plurality of AsH3 or PH3 outlets positioned radially in a circle, Lee et al. disclose providing a plurality of outlets (Fig. 1-7, 330) positioned radially in a circle around a growth substrate for the purpose of providing and configuring the plurality of outlets to uniformly supply reaction gas (see, e.g., abstract and paras. 36 and 40).
Thus, it would have been further obvious to one of ordinary skill in the art before Applicant’s invention was effectively filed to have provided the plurality of outlets positioned radially in a circle in modified Tsvetkov et al. in order to provide and configure the plurality of outlets to uniformly supply reaction gas as taught by Lee et al.
With respect to claim 5, in modified Tsvetkov et al., the reactor of Tsvetkov et al. may further comprise a high temperature region (left side of chamber) and a low temperature region wherein the high temperature region contains the source boats and wherein the low temperature region contains the outlet capable of outletting a group V hydride material (see, e.g., paras. 29 and 34).
Additionally, with respect to the recitations drawn to intended use of the reactor in claims 5-6 and 8-14, similar to claim 1, Examiner notes the courts have ruled a claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987); expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim. Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969); and the inclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims. In re Young, 75 F.2d 966, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)).
Response to Arguments
Applicant’s arguments with respect to prior art rejections of claim(s) 1, 5-6 and 8-14 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record, as presently applied, for any teaching or matter specifically challenged in the argument.
Regarding the previously set forth drawing objections, Examiner notes that in general the propriety of the restriction requirement set forth on 12 December 2022, where Applicant elected without traverse on 13 February 2023, is not up for argument at this time, because Applicant elected without traverse and the election was made final on 29 March 2023. Applicant should consult the MPEP for guidance on how to properly traverse a previously election made without traverse, if possible, if they so choose.
However, in as much as the requirement for restriction/election relates to the elected species and the claims currently under examination, as argued by Applicant, Examiner does address the issues presented by Applicant in their most recent response filed 9 June 2026 below.
Whereas Applicant has stated that “restrictions must be made on the basis of distinct claimed inventions not figures”, Examiner disagrees and notes that although in most instances an election will not be made unless multiple species are actually claimed, the basis for requirement for election between species is not made on the claims. Species elections are based on the disclosure including the specification and the drawings, and the mutually exclusive features set forth therein, which the claims are meant to represent as the claimed invention. Additionally, Examiner notes that it is not improper to use illustrations to help describe separate species/inventions. In the instant case, the restriction was made based on different inventions, species, that have mutually exclusive characteristics. The drawings were used as evidence of these mutually exclusive characteristics.
In the instant application, no clear nexus was provided for the structural configuration of the disclosed Group V hydride injector inlet of Fig. 1 and the AsH3 or PH3 inlet of claim 1 as related to the elected embodiment represented by Fig. 2. Note element “201” points to both sides of the outlets they represent as per the original specification and no mention is made of the inlet in the specification with respect to the figure. While one could imagine configurations for the claim language (which is why the claims are capable of being examined as written), patent examination is based what is set forth in the original disclosure.
Presently, Applicant’s claimed invention, as amended throughout examination (often to distinguish over prior art), appears to extend beyond what was explicitly or implicitly disclosed at the time the application was originally filed. Beyond removing the features at issue and focusing on other features of the disclosed invention with sufficient disclosure, Examiner does not have any specific recommendations for overcoming the drawing rejections and rejections under 35 USC 112a, especially since, the features at issue are known in the art, such that there are also rejections under 35 USC 103.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Patent No. 5,254,210 discloses an HVPE system and reactor that includes a source of AsH3 or PH3. USP Pub 20200035852 discloses a gas introduction means encircling a substrate(s).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA MOORE whose telephone number is (571)272-1440. The examiner can normally be reached Monday-Friday, 9am-6pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, PARVIZ HASSANZADEH can be reached on (571) 272-1435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KARLA A MOORE/Primary Examiner, Art Unit 1716
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