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 .
Response to Arguments
Applicant's arguments filed 01/23/2026 have been fully considered but they are not persuasive.
Applicant argues “claim 1 recites that "at least 70% of the volume of diamond in the powder is formed from a single crystal growth sector", which is not taught or suggested by the combination of Curmi and Barjon. The Office concedes that Curmi "does not specify the source of the powder" and thus, the Office introduces and relies on Barjon to cure this acknowledged deficiency. Barjon, however, does not teach or suggest that "at least 70% of the volume of diamond in the powder is formed from a single crystal growth sector".” Applicant’s argument is not persuasive because Fig. 21 of Barjon teaches “Predicted morphology by our growth model (left panel) for a film grown under the same conditions as that of the top row of Fig. 20 (α=1.8, β=1.1,γ=5), but on a square <100>-oriented substrate with {110} side faces. SEM photograph of the corresponding film (right panel) in perfect agreement with model predictions, showing the absence of transient {110} faces. All four crystal corners are intact.” It is the position of the Office the diamond film taught by Barjon in Fig. 21 meets a broad and reasonable interpretation of "at least 70% of the volume of diamond in the powder is formed from a single crystal growth sector”.
Applicant then argues “that Curmi and Barjon are incompatible because the synthesis conditions described in Barjon are for substantially nitrogen-free growth as nitrogen is not mentioned among the process gases. There is no teaching or suggestion in Barjon that the conditions described are suitable for nitrogen-doped growth, and a person skilled in the art would understand that conditions for undoped and nitrogen-doped growth differ.” Applicant’s argument is not persuasive because Barjon does not explicitly state that the conditions described are ONLY suitable for nitrogen-free growth. Nitrogen is a known dopant used for doping CVD diamonds. Barjon teaches “we propose a three-pronged approach: (i) We use detailed plasma models to establish the influence of process parameters (in particular deposition pressure) on plasma chemistry in order to optimize film growth rate and diamond quality; (ii) We emphasize the need for careful substrate pre-treatment and selection (including choosing a single-sector face) to minimize defects in the growing films; (iii) We employ a 3D geometrical model to predict the crystal shape under given growth conditions, and exploit this knowledge to devise a growth strategy maximizing the usable film surface area while minimizing stresses inside the films.” (abstract). The 3 pronged approach taught by Barjon does not state the exclusion of dopants and therefore the Office maintains the position that one of ordinary skill in the art would use the single crystal diamond taught by Barjon for the single crystal diamond crushed by Curmi.
Applicant recites similar arguments with respect to the rejection of Claims 1-9, 26-29 and 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang et al. (2008/0118966) in view of Barjon. Applicant argues Barjon fails to teach or suggest that "at least 70% of the volume of diamond in the powder is formed from a single crystal growth sector". As stated supra Applicant’s argument is not persuasive because Fig. 21 of Barjon teaches “Predicted morphology by our growth model (left panel) for a film grown under the same conditions as that of the top row of Fig. 20 (α=1.8, β=1.1,γ=5), but on a square <100>-oriented substrate with {110} side faces. SEM photograph of the corresponding film (right panel) in perfect agreement with model predictions, showing the absence of transient {110} faces. All four crystal corners are intact.” It is the position of the Office the diamond film taught by Barjon in Fig. 21 meets a broad and reasonable interpretation of "at least 70% of the volume of diamond in the powder is formed from a single crystal growth sector”.
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.
The factual inquiries 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.
Claims 1-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Curmi et al. (WIPO 2010/102977) in view of Barjon et al. (High quality, large surface area, homoepitaxial MPACVD diamond growth; Diamond & Related Materials 18; 683–697; 2009).
Regarding claims 1, 2, 3, 4, 6, 7, and 9, Curmi et al. teaches cubic diamond nanocrystals which maximum size is equal or less to 100 nm obtained by nanomilling fine powder and therefore meets a broad and reasonable interpretation of a diamond powder comprising diamond particles having an average particle size of no more than 20 microns (page 3, lines 5-25). Curmi et al. teaches nitrogen vacancy and diamond nanocrystal consists of carbon comprising 0 to 2000 ppm dopant which therefore overlaps with a vacancy or impurity-vacancy point defect concentration of at least 1 ppm (page 5, lines 15-25). Curmi et al teaches providing diamond powder for milling but does not specify the source of the powder (page 2; page 3, lines 10-20).
Barjon et al. teaches two CVD films grown, in identical conditions, one on a substrate face made up of a single <100> growth sector, and the other on a substrate face consisting of several sectors (page 689, paragraph 1). Barjon et al. teaches experiment demonstrates that, when using HPHT substrates, only faces consisting of a single <100> growth sector are suitable for homoepitaxial CVD diamond growth, if one wishes to avoid as much as possible the presence of dislocations during the growth (page 690, paragraph 3; Fig. 16). Barjon et al. teaches the need for careful substrate pre-treatment and selection (including choosing a single-sector face) to minimize defects in the growing films (abstract). It would have been obvious to one of ordinary skill in the art at the time of filing to use the CVD film grown on a substrate face made up of a single <100> growth sector for the diamond powder milling taught by Curmi et al. because it minimizes defects and dislocations.
Regarding claim 5, Curmi et al. teaches nitrogen vacancy (page 12, lines 15-30).
Regarding claim 8, Curmi et al. teaches labelling a molecule comprising grafting a preceding cubic diamond nanocrystal which meets a broad and reasonable interpretation of comprising one or more organic functional groups bonded to an outer surface of the diamond particles (page 6, lines 5-15).
Regarding claims 26-29, Curmi et al. teaches nitrogen vacancy and diamond nanocrystal consists of carbon comprising 0 to 2000 ppm dopant which therefore overlaps with a vacancy or impurity-vacancy point defect concentration of at least 10, 20, 50, 100 ppm (page 5, lines 15-25).
Regarding claim 34, Curmi et al. teaches cubic diamond nanocrystals which maximum size is equal or less to 100 nm obtained by nanomilling fine powder and therefore meets a broad and reasonable interpretation of wherein the average particle size of the diamond particles is no more than 200 nanometres (page 3, lines 5-25).
Regarding claim 35, Barjon et al. teaches a CVD film grown on a substrate face made up of a single <100> growth sector which meets a broad and reasonable interpretation of wherein the volume of diamond in the powder formed from a single crystal growth sector is greater than 90% (page 689, paragraph 1). Barjon et al. teaches experiment demonstrates that, when using HPHT substrates, only faces consisting of a single <100> growth sector are suitable for homoepitaxial CVD diamond growth, if one wishes to avoid as much as possible the presence of dislocations during the growth (page 690, paragraph 3; Fig. 16). Barjon et al. teaches the need for careful substrate pre-treatment and selection (including choosing a single-sector face) to minimize defects in the growing films (abstract). It would have been obvious to one of ordinary skill in the art at the time of filing to use the CVD film grown on a substrate face made up of a single <100> growth sector for the diamond powder milling taught by Curmi et al. because it minimizes defects and dislocations.
Claim(s) 30-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Curmi et al. in view of Barjon et al. as applied to claim 19 above, and further in view of Wrachtrup et al. (Single Nitrogen Vacancy Centers in Chemical Vapor Deposited Diamond Nanocrystals; Nano Lett., Vol. 7, No. 11, 2007).
Curmi et al. teaches cubic diamond nanocrystals which maximum size is equal or less to 100 nm obtained by nanomilling fine powder and therefore meets a broad and reasonable interpretation of a diamond powder comprising diamond particles having an average particle size of no more than 20 microns (page 3, lines 5-25). Curmi et al. teaches nitrogen vacancy and diamond nanocrystal consists of carbon comprising 0 to 2000 ppm dopant which therefore overlaps with a vacancy or impurity-vacancy point defect concentration of at least 1 ppm (page 5, lines 15-25). Curmi et al teaches providing diamond powder for milling but does not specify the source of the powder (page 2; page 3, lines 10-20).
Barjon et al. teaches two CVD films grown, in identical conditions, one on a substrate face made up of a single <100> growth sector, and the other on a substrate face consisting of several sectors (page 689, paragraph 1). Barjon et al. teaches experiment demonstrates that, when using HPHT substrates, only faces consisting of a single <100> growth sector are suitable for homoepitaxial CVD diamond growth, if one wishes to avoid as much as possible the presence of dislocations during the growth (page 690, paragraph 3; Fig. 16). Barjon et al. teaches the need for careful substrate pre-treatment and selection (including choosing a single-sector face) to minimize defects in the growing films (abstract). It would have been obvious to one of ordinary skill in the art at the time of filing to use the CVD film grown on a substrate face made up of a single <100> growth sector for the diamond powder milling taught by Curmi et al. because it minimizes defects and dislocations.
Curmi et al. in view of Barjon et al. do not teach wherein the particles in the powder have an average vacancy or impurity-vacancy point defect concentration, and a variation about the average vacancy or impurity-vacancy point defect concentration is no more than 40%, 30%, 20%, or 10%.
Wrachtrup et al. teaches in quantum information processing the nitrogenvacancy (NV) color center in diamond has been demonstrated to be an efficient source for single photons1,2 and has been used to implement quantum key distribution in free space (page 3433, paragraph 1). Wrachtrup et al. teaches on average a 60-70 nm diameter crystal would be expected to have 0.15-0.2 NV centers which would give an estimated variance for data ranging from 0.15 to 0.2 that is no more than 40%, 30%, 20%, or 10% (page 3435, paragraph 5). It is clear that the NV centers taught by Curmi et al. in view of Barjon et al. would necessarily give a variation about the average vacancy or impurity-vacancy point defect concentration is no more than 40%, 30%, 20%, or 10% (paragraph 36).
Claim(s) 1-9, 26-29 and 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang et al. (2008/0118966) in view of Barjon et al. (High quality, large surface area, homoepitaxial MPACVD diamond growth; Diamond & Related Materials 18; 683–697; 2009).
Regarding claims 1, 2, and 35 Chang et al. teaches particles have a diameter of 1 nm to 1 mm which overlaps with a diamond powder comprising diamond particles having an average particle size of no more than 20 µm (paragraph 8). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Chang et al. teaches has 5 ppm to 1000 ppm color centers (e.g., 5 ppm to 500 ppm) wherein the color centers can include negatively charged nitrogen-vacancy defects and neutral nitrogen-vacancy defects which meets a broad and reasonable interpretation of a vacancy or impurity-vacancy point defect concentration of at least 1 ppm (paragraph 11). Chang et al. teaches synthetic type Ib diamond single crystals obtained from Element Six (paragraph 38). It is known in the art that type Ib diamonds contain nitrogen, but the nitrogen atoms are dispersed individually (isolated) rather than in clusters and are formed through HPHT or CVD processes.
Barjon et al. teaches two CVD films grown, in identical conditions, one on a substrate face made up of a single <100> growth sector, and the other on a substrate face consisting of several sectors (page 689, paragraph 1). Barjon et al. teaches experiment demonstrates that, when using HPHT substrates, only faces consisting of a single <100> growth sector are suitable for homoepitaxial CVD diamond growth, if one wishes to avoid as much as possible the presence of dislocations during the growth (page 690, paragraph 3; Fig. 16). Barjon et al. teaches the need for careful substrate pre-treatment and selection (including choosing a single-sector face) to minimize defects in the growing films (abstract). It would have been obvious to one of ordinary skill in the art at the time of filing to use the CVD film grown on a substrate face made up of a single <100> growth sector for the diamond powder taught by Chang et al. because it minimizes defects and dislocations.
Regarding claim 3, it would have been obvious to one ordinary skill in the art to use known methods such as crushing and/or grinding diamond particles to obtain diamond particles of desired size.
Regarding claim 4, Chang et al. teaches has 5 ppm to 1000 ppm color centers (e.g., 5 ppm to 500 ppm) wherein the color centers can include negatively charged nitrogen-vacancy defects and neutral nitrogen-vacancy defects which meets a broad and reasonable interpretation of a vacancy or impurity-vacancy point defect concentration of any one of at least: 5 ppm (paragraph 11).
Regarding claim 5, Chang et al. teaches has 5 ppm to 1000 ppm color centers (e.g., 5 ppm to 500 ppm) wherein the color centers can include negatively charged nitrogen-vacancy defects and neutral nitrogen-vacancy defects which meets a broad and reasonable interpretation wherein the impurity- vacancy point defects are selected from any of nitrogen-vacancy point defects and silicon-vacancy point defects (paragraph 11).
Regarding claim 6, Chang et al. teaches has 5 ppm to 1000 ppm color centers (e.g., 5 ppm to 500 ppm) wherein the color centers can include negatively charged nitrogen-vacancy defects and neutral nitrogen-vacancy defects which meets a broad and reasonable interpretation of wherein the particles in the powder have an average vacancy or impurity-vacancy point defect concentration, and a variation about the average vacancy or impurity-vacancy point defect concentration is selected from any one of no more than: 50% (paragraph 11).
Regarding claim 7, Chang et al. teaches particles have a diameter of 1 nm to 1 mm which overlaps with wherein the average particle size of the diamond particles is selected from any of no more than 500 nanometres (paragraph 8). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 8, Chang et al. teaches the surface of diamond can be easily functionalized for specific or nonspecific binding with nucleic acids and proteins without affecting its fluorescence properties which meets a broad and reasonable interpretation of further comprising one or more organic functional groups bonded to an outer surface of the diamond particles (paragraph 6).
Regarding claim 9, Chang et al. teaches synthetic type Ib diamond single crystals were obtained from Element Six which meets a broad and reasonable interpretation of wherein the volume of diamond in the powder formed from a single crystal growth sector is selected from any of greater than 80% (paragraph 38).
Regarding claims 26-29, Chang et al. teaches has 5 ppm to 1000 ppm color centers (e.g., 5 ppm to 500 ppm) wherein the color centers can include negatively charged nitrogen-vacancy defects and neutral nitrogen-vacancy defects which meets the claimed vacancy or impurity-vacancy point defect concentration (paragraph 11).
Claim(s) 30-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang et al. in view of Barjon et al. as applied to claim 19 above, and further in view of Wrachtrup et al. (Single Nitrogen Vacancy Centers in Chemical Vapor Deposited Diamond Nanocrystals; Nano Lett., Vol. 7, No. 11, 2007).
Chang et al. teaches particles have a diameter of 1 nm to 1 mm which overlaps with a diamond powder comprising diamond particles having an average particle size of no more than 20 µm (paragraph 8). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Chang et al. teaches has 5 ppm to 1000 ppm color centers (e.g., 5 ppm to 500 ppm) wherein the color centers can include negatively charged nitrogen-vacancy defects and neutral nitrogen-vacancy defects which meets a broad and reasonable interpretation of a vacancy or impurity-vacancy point defect concentration of at least 1 ppm (paragraph 11). Chang et al. teaches synthetic type Ib diamond single crystals obtained from Element Six (paragraph 38). It is known in the art that type Ib diamonds contain nitrogen, but the nitrogen atoms are dispersed individually (isolated) rather than in clusters and are formed through HPHT or CVD processes. Chang et al. does not psecifya single growth sector.
Barjon et al. teaches two CVD films grown, in identical conditions, one on a substrate face made up of a single <100> growth sector, and the other on a substrate face consisting of several sectors (page 689, paragraph 1). Barjon et al. teaches experiment demonstrates that, when using HPHT substrates, only faces consisting of a single <100> growth sector are suitable for homoepitaxial CVD diamond growth, if one wishes to avoid as much as possible the presence of dislocations during the growth (page 690, paragraph 3; Fig. 16). Barjon et al. teaches the need for careful substrate pre-treatment and selection (including choosing a single-sector face) to minimize defects in the growing films (abstract). It would have been obvious to one of ordinary skill in the art at the time of filing to use the CVD film grown on a substrate face made up of a single <100> growth sector for the diamond powder milling taught by Curmi et al. because it minimizes defects and dislocations.
Curmi et al. in view of Barjon et al. do not teach wherein the particles in the powder have an average vacancy or impurity-vacancy point defect concentration, and a variation about the average vacancy or impurity-vacancy point defect concentration is no more than 40%, 30%, 20%, or 10%.
Wrachtrup et al. teaches in quantum information processing the nitrogen vacancy (NV) color center in diamond has been demonstrated to be an efficient source for single photons1,2 and has been used to implement quantum key distribution in free space (page 3433, paragraph 1). Wrachtrup et al. teaches on average a 60-70 nm diameter crystal would be expected to have 0.15-0.2 NV centers which would give an estimated variance for data ranging from 0.15 to 0.2 that is no more than 40%, 30%, 20%, or 10% (page 3435, paragraph 5). It is clear that the NV centers taught by Chang et al. in view of Barjon et al. would necessarily give a variation about the average vacancy or impurity-vacancy point defect concentration is no more than 40%, 30%, 20%, or 10% (paragraph 36).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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/GUINEVER S GREGORIO/Primary Examiner, Art Unit 1732 06/01/2026
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