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 .
Election/Restrictions
Applicant’s election without traverse of claims 11-30 in the reply filed on 10/28/2025 is acknowledged.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 11-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11594607. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 11 is disclosed by the claim 11 of the patented case, and claim 12 is disclosed by the claim 12; claim 13 is disclosed by the claim 13; claim 14 is disclosed by the claim 14; claim 15 is disclosed by the claim 15; claim 16 is disclosed by claim 16; claim 17 is disclosed by claim 17; claim 18 is disclosed by claim 18 and claim 19 is disclosed by claim 19; claim 20 is disclosed by claim 20; claim 21 is disclosed by claim 11; claim 22 is disclosed by claim 4, it would have been obvious to one of ordinary skill in the art at the time of the filing of the invention to modify claim 11 according to the teachings of the claim 4 so the gate feature is formed on the central of fin structure as a design choice; with respect to claim 23, claim 7 discloses the limitation of the claim 23, it would have been obvious to one of ordinary skill in the art at the time of the filing of the invention to modify claim 11 according to the teachings of the claim 7 as a design choice; claim 24 is disclosed by claim 13; claim 25 is disclosed claim 12; claim 26 is disclosed by claim 14;claim 27 is disclosed by claim 15; claim 28 is disclosed by claim 16; claim 29 is disclosed by claim 13; claim 30 is disclosed by claim 1; it would have been obvious to one of ordinary skill in the art at the time of the filing of the invention to modify claim 11 of the current case according to the teaching of the claim 1, such that dummy poly layer is formed and then it is removed and the void is filled to form the gate, in order to make gate structure on the fin.
Conclusion
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/ALI NARAGHI/Examiner, Art Unit 2817