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 .
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.
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) 12-17, 19-23 and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Markham et al (US 2016/0348277) in view of Namba et al (US 2006/0177962).
Markham et al teaches a method of making a NV center in a diamond layer comprising implanting nitrogen with an implantation dose of at least 105 N/cm2, 106 N/cm7 ,108 N/cm2,109 N/cm2 or 1010 N/cm2, and then annealing to cause the formation of NV centers ([0042]-[0073]), which clearly suggests incorporating at least one nitrogen atom in the diamond layer by ion bombardment with impurity atoms to form the NV center, wherein the ion bombardment with the impurity atoms has an ionic fluence of up to 1010cm-2. Overlapping ranges are prima facie obvious (MPEP 2144.05).
Markham et al does not explicitly teach implanting at least one dopant in the diamond layer, where in the dopant is lithium, oxygen or sulphur.
In a method of making diamond, Namba et al teaches making n-type diamond by implanting Li and N (Abstract; [0025]-[0052], Tables I-IX).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify Markham et al by doping the diamond by implanting lithium, as taught by Namba et al, to produce n-type diamond having desirable electrical properties.
In regards to the limitation “the diamond layer is doped with the at least one dopant to enhance negative charging of vacancies during formation of the at least one NV centers,” this limitation merely recites a motivation for doping with the dopant. The combination of Markham et al and Namba et al teaches making n-type diamond by implanting Li and N (Namba Abstract; [0025]-[0052], Tables I-IX); therefore, the effect of enhance negative charging of vacancies during formation of the at least one NV centers would be expected because a similar method would be expected to have similar effects. The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). It is also noted that the dopant is used to “enhance” a negative charging of vacancies during NV formation would be expected because “enhance” would merely require some/nominal improvement compared to negative charging of vacancies during NV formation without dopant; therefore, the implantation of the claimed dopants would be expected to “enhance” negative charging of vacancies. The examiner maintains that an explicit recognition of the claimed effect/benefit is not required to show that the claimed feature is obvious when the prior art teaches a different advantage/motivation.
Referring to claim 13-14, the combination of Markham et al and Namba et al teaches implanting nitrogen with an implantation dose of at least 105 N/cm2, 106 N/cm7 ,108 N/cm2,109 N/cm2 or 1010 N/cm2 (Markham [0067]) and a N implant energy of less than 100 keV (Namba Table II-IX). Furthermore, the implant dose and implant energy are result effective variables; therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to modify the combination of Markham et al and Namba et al by optimizing the implant dose and implant energy by conducting routine experimentation to obtain the claimed ranges.
Referring to claim 15, the combination of Markham et al and Namba et al teaches implanting Li to a concentration of 10 ppm or more (Namba Abstract). Therefore, It would have been obvious to one of ordinary skill in the art at the time of filing to modify the combination of Markham et al and Namba et al by having a dopant concentration of 1017-1019 cm-3 because overlapping ranges are prima facie obvious (MPEP 2144.05). Furthermore, changing the concentration of Li would affect the electrical properties; therefore, having a dopant concentration of 1017-1019 cm-3 would have been obvious to one of ordinary skill in the art at the time of filing to produce a diamond having desired electrical properties.
Referring to claim 16, the combination of Markham et al and Namba et al teaches a Li implant energy of less than 150 keV (Namba Table II-IX). Furthermore, the implant dose and implant energy are result effective variables; therefore, It would have been obvious to one of ordinary skill in the art at the time of filing to modify the combination of Markham et al and Namba et al by optimizing the implant dose and implant energy by conducting routine experimentation to obtain the claimed ranges.
Referring to claim 17, the combination of Markham et al and Namba et al teaches examples of implanting Li with an implantation dose of 1.0x1012 and 1x1013 cm-2 (Namba Table II-IX). Furthermore, the implant dose and implant energy are result effective variables; therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to modify the combination of Markham et al and Namba et al by optimizing the implant dose and implant energy by conducting routine experimentation to obtain the claimed ranges.
Referring to claim 19, the combination of Markham et al and Namba et al teaches implanting Li and N, wherein the implantation depths of Li and N overlap (Namba [0063]).
Referring to claim 20, the combination of Markham et al and Namba et al teaches the implantation depth being no more than 100 nm (Markham [0067]). Overlapping ranges are prima facie obvious (MPEP 2144.05).
Referring to claim 21-22, the combination of Markham et al and Namba et al teaches implanting Li and N and annealing at 800-1800°C for 10 hrs (Namba [0066], [0075]).
Referring to claim 23, the combination of Markham et al and Namba et al teaches all of the limitations of claim 23, as discussed above, except does not explicitly teach a Fermi level is raised. The combination of Markham et al and Namba et al teaches impurity incorporation and tempering (annealing); therefore, a Fermi level is expected to be raised because the combination of Markham et al and Namba et al teaches a similar method as applicant, and a similar method is expected to produce similar results/effects.
Referring to claim 25, the combination of Markham et al and Namba et al teaches single crystal CVD diamond layer and formation of a nitrogen-vacancy defect layer 12 ([0069]), wherein the diamond layer extends to a greater depth than the surface.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Markham et al (US 2016/0348277) in view of Namba et al (US 2006/0177962), as applied to claim 12-17, 19-23 and 25 above, and further in view of Meriles et al (US 2018/0252781).
The combination of Markham et al and Namba et al teaches all of the limitations of claim 18, as discussed above, except the dopant implantation is performed in at least two successively different steps, and further wherein the dopant implantation with each of the at least two successively different steps is performed by dopant bombardment at a different fluence and/or energy than other steps of the at least two successively different steps. The combination of Markham et al and Namba et al teaches implanting Li and N, wherein the implantation depths of Li and N overlap (Namba [0063]).
In a method of diamond implantation, Meriles et al teaches nitrogen ion implanted diamond crystal featuring NVs at three different depths, namely, 5, 10, and 15 nm; during implantation the ion fluence was gradually varied to create a nitrogen concentration gradient ([0110]-[0120]).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the combination of Markham et al and Namba et al by varying the ion fluence of the dopant to deposit the dopant and nitrogen at different depths, as taught by Meriles et al, to from NV at a plurality of desired depths.
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Markham et al (US 2016/0348277) in view of Namba et al (US 2006/0177962), as applied to claim 12-17, 19-23 and 25 above, and further in view of Kamo et al (US 5,961,717).
The combination of Markham et al and Namba et al teaches all of the limitations of claim 24, as discussed above, except the combination of Markham et al and Namba et al does not explicitly teach the hydrogen concentration.
In a method of making diamond, Kamo et al teaches forming diamond, and the hydrogen concentration is the diamond is less than a detectable limit (col 2, ln 1 to col 3, ln 10).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the combination of Markham et al and Namba et al by minimizing hydrogen impurities to less than a detectable limit, as taught by Kamo et al, which would overlap the claimed range of less than 1017/cm3 to minimize impurities. Overlapping ranges are prima facie obvious (MPEP 2144.05). The mere purity of a product, by itself, does not render the product nonobvious (MPEP 2144.04 VII).
Claim(s) 32-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Markham et al (US 2016/0348277) in view of Namba et al (US 2006/0177962), as applied to claim 12-17, 19-23 and 25 above, and further in view of Prins (WO 00/73543 A1).
The combination of Markham et al and Namba et al teaches all of the limitations of claim 32, as discussed above, except the combination of Markham et al and Namba et al does not explicitly teach implanting the at least one dopant in the diamond layer is performed prior to incorporating the at least one nitrogen atom in the diamond layer by ion bombardment.
In a method of producing doped crystalline substrates, Prins teaches implanting dopant atoms into a diamond substrate to create a doped layer and thereafter, or at the same time, ions are implanted into the substrate to a create a damaged layer which is separate from the doped layer and contains vacancies (Abstract; pg 5). Prins teaches dopant atoms may be any known in the art such as boron, oxygen, nitrogen, phosphorous, arsenic or any other which imparts electrical properties; and nitrogen ions having a selected energy are used to create a damaged layer (pg 4). Prins teaches the implantation of dopant atoms and the damage creating ions (Nitrogen) can be carried out simultaneously or sequentially (pg 5), which clearly suggests implanting dopants and then bombarding with nitrogen.
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the combination of Markham et al and Namba et al by implanting the at least one dopant in the diamond layer is performed prior to incorporating the at least one nitrogen atom in the diamond layer by ion bombardment, as taught by Prins, to have interstitial atoms diffuse of the damaged layer into vacancies in the doped layer to reduce the damage therein (Prins Abstract).
Referring to claim 33, see the remarks above. Also, the combination of Markham et al, Namba et al and Prins teaches implanting dopant which would be expected to raise the Fermi level because applicant teaches doping to raise the Fermi level and bombarding with nitrogen after doping (see remarks above regarding claim 32).
Referring to claim 34, see remarks above.
Referring to claim 35-36, the combination of Markham et al, Namba et al and Prins teaches dopant atoms may be any known in the art such as boron, oxygen, nitrogen, phosphorous, arsenic or any other which imparts electrical properties; and nitrogen ions having a selected energy are used to create a damaged layer (Prins pg 4).
The selection of a known material based on its suitability for its intended purpose is prima facie obvious (MPEP 2144.07); therefore, the selection of phosphorus or oxygen to dope the diamond layer would have been obvious to one of ordinary skill in the art at the time of filing. The combination of Markham et al, Namba et al and Prins teaches doping with phosphorus or oxygen, as applicant; therefore, the effect of enhancing a negative charging of the at least one deterministic NV center would be expected because similar methods are expected to produce similar results. The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Response to Arguments
Applicant's arguments filed 01/27/2026 have been fully considered but they are not persuasive.
Applicant’s argument that the prior art does not teach the diamond layer is doped with the least one dopant to enhance negative charging of vacancies during formation of the at least one NV centers is noted but not found persuasive. The claimed limitation merely recites a motivation for doping with the dopant. The combination of Markham et al and Namba et al teaches making n-type diamond by implanting Li and N (Namba Abstract; [0025]-[0052], Tables I-IX); therefore, the effect of enhance negative charging of vacancies during formation of the at least one NV centers would be expected because a similar method would be expected to have similar effects. The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). It is also noted that the dopant is used to “enhance” a negative charging of vacancies during NV formation would be expected because “enhance” would merely require some/nominal improvement compared to negative charging of vacancies during NV formation without dopant; therefore, the implantation of the claimed dopants would be expected to “enhance” negative charging of vacancies. The examiner maintains that an explicit recognition of the claimed effect/benefit is not required to show that the claimed feature is obvious when the prior art teaches a different advantage/motivation.
Applicant’s argument that the amended claim requires a specific physical mechanism that is absent from the prior art is noted but not found persuasive. As discussed above, the alleged specific physical mechanism is the implantation of the claimed dopants, which is the same method taught by the prior art; therefore, the claimed effect would be expected because a similar method is expected to produce a similar result.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW J SONG whose telephone number is (571)272-1468. The examiner can normally be reached Monday-Friday 10AM-6PM.
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MATTHEW J. SONG
Examiner
Art Unit 1714
/MATTHEW J SONG/ Primary Examiner, Art Unit 1714