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 .
Applicant's submission filed on 12/5/25 has been entered. Claims 1-7, and 16-18 are currently pending, claims 8-14 are withdrawn and claim 15 has been canceled.
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 1-7 and 16-18 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, line 6, recites the limitation "forming the diamond crystal". There is insufficient antecedent basis for this limitation in the claim, as nowhere prior has “a diamond crystal” been recited.
Claim 1, line 11, further recites the limitation “wherein the diamond substrate comprises a diamond crystal layer…”. There is insufficient antecedent basis for this limitation in the claim, as when taken in the context of claims if “a diamond crystal layer” is intended to reference the “diamond crystal” material formed at line 6 of claim 1, or some other separate and distinct material entirely. For purposes of examination “forming the diamond crystal” at line 6 will be interpreted as at least inclusive of “forming diamond crystal” and the limitation “wherein the diamond substrate comprises a diamond crystal layer…” will be interpreted as at least inclusive of either such offered alternative scenario.
The other dependent claims do not cure the defects of the claims from which they depend.
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.
Claim(s) 1-2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bruce et al (WO 2017/112399; hereafter Bruce) in view of Ruan et al (“Si impurity in chemical vapor deposited diamond films” Appl. Phys. Lett. 58 (3) 21 Jan 1991 pg 295-297; hereafter Ruan).
Claims 1-2: Bruce teaches a method for manufacturing a diamond substrate comprising;
Providing a chamber for performing a formation of the diamond substrate, providing an underlying substrate, and forming diamond crystal on the underlying substrate by using a source gas containing a hydrogen gas, being a dilution gas (hydrogen), and a hydrocarbon gas (methane) to form a diamond crystal on an underlying substrate by a microwave plasma CVD method (see, for example, abstract, pg 11 lines 1-8, substrate is surface upon which growth occurs, and vessel holding the microwave power and system pressure reads on the chamber),
wherein to the diamond substrate comprises a diamond crystal layer having nitrogen-vacancy centers (see, for example, abstract, pg 11 lines 1-8),
wherein a source gas for the CVD method comprises where nitrogen gas (nitrogen) is mixed in the source gas, and an amount of each gas contained in the source gas is:
12 sccm methane gas; 30 sccm of 1000ppm N2 in H2, and 580 sccm hydrogen (for a total of 622 by further calculation, 12 attributable to methane, 0.03 attributable to N2, and 609.97 attributable to H2) for a resulting vol% of 98.07 % hydrogen gas, 1.93 methane gas, and 0.0048 nitrogen gas (see, for example, pg 11 lines 1-8),
Wherein a gas pressure in the formation of the diamond crystal by the CVD method is 230 Torr (See, for example, pg 11 lines 1-5),
Thereby forming the diamond crystal layer having the nitrogen-vacancy centers in at least part of the diamond substrate (see, for example, pg 11 lines 1-8).
Bruce is silent as to the chemistry of each and every member used in the chamber for performing the CVD, so it does not explicitly teach a member containing Si is not used in a chamber for performing the formation of the diamond crystal by the CVD method. Ruan teaches a method of CVD diamond film growth (see, for example, pg 295). Ruan further teaches wherein Si impurities become incorporated into the diamond films in the CVD process when in the presence of Si containing members (See, for example, pg 295-297). Therefore it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated wherein the chamber does not comprise a member containing Si as it would predictably reduce / avoid the occurrence of Si impurities and thus enhance the obtained diamond purity.
Claim(s) 5, 7, and 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bruce in view of Ruan as applied to claim 1 above, and further in view of Twitchen et al (US 2011/0151226; hereafter Twitchen).
Claims 5: Bruce in view of Ruan teach the method of claim 1 above, wherein Bruce is silent as to the specifics of CVD conditions beyond the gases, power, and pressure, so it does not explicitly teach the type of underlying substrate used for the diamond growth. Twitchen teaches a method for producing a diamond substrate via CVD (See, for example, abstract, [0241]). Twitchen further teaches than any of microwave, RF, Flame, hot filament, or jet based techniques can predictably be used as the energy source for dissociation of the reactive gas species (plasma) in CVD systems (See, for example, [0093]). Twitchen further teaches wherein a suitable substrate to provide for reduced defect formation and enhanced growth for the synthetic CVD diamond material is a single layer of single crystal diamond, (see, for example, [0066-0083] [0214-215]). Therefore it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated a single layer of single crystal diamond as the underlying substrate as such a material is well known in the art to achieve the predictably result of serving as a substrate for CVD diamond, and since such a substrate is known to provide enhanced growth and reduced defect formation for the CVD diamond, and since when a primary reference is silent as to a certain detail, one of ordinary skill would be motivated to consult a secondary reference which satisfies the deficiencies of the primary reference.
Claim 7: Refer to the rejection of claim 5 above, Twitchen further teaches wherein the single layer substrate of a single crystal diamond is any of a high-pressure-high-temperature-synthesized single crystal diamond, a heteroepitaxial single crystal diamond, a CVD-synthesized homoepitaxial diamond, and a combined single crystal diamond thereof (See, for example, [0066-0069]).
Claim 17: Bruce in view of Ruan and Twitchen teach the method of claim 5 above, wherein Bruce teaches the CVD diamond as single crystal and having nitrogen-vacancy centers (See, for example abstract, and rejection of claim 1 above). And Twitchen further teaches removing the underlying substrate from the CVD diamond crystal layer to produce a freestanding diamond substrate (see, for example, [0241]).
Claim 18: Bruce in view of Ruan and Twitchen teach the method of claim 5 and 17 above, wherein Bruce teaches the CVD diamond as single crystal and having nitrogen-vacancy centers (See, for example abstract, and rejection of claim 1 above). And Twitchen further teaches after removing the underlying substrate, polishing the surface of the CVD diamond crystal layer (see, for example, [0241]).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bruce in view of Ruan and as applied to claim 1 above, and further in view of Scholz (US 2020/0123653; hereafter Scholz).
Claim 3: Bruce in view of Ruan teaches the method of claim 1 (above). But Bruce is silent as to power flux /density for the CVD system, therefore they do not explicitly teach a discharge power flux density within the claimed range. Scholz teaches microwave plasma CVD system for diamond (See, for example, abstract, [0002]). Scholz further teaches that diamond growth rates can be improved by creating high power flux / density microwave discharges, further on the order of 50 to 400 W/cm2 (See, for example, [0024]). Therefore it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated a discharge power (flux) density of from 50-400 W/cm2 since such a density is conventional in the art to predictably apply diamond via microwave CVD with improved growth rate, and since when a primary reference is silent as to a certain detail, one of ordinary skill would be motivated to consult a secondary reference which satisfies the deficiencies of the primary reference. Although such a range is not explicitly within 188 W/cm2 or more and 942 W/cm2 or less, it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated a power flux density within the claimed range since in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bruce in view of Ruan as applied to claim 1 above, and further in view of Zhu et al (“Investigations of the role of the discharge current density in diamond synthesis during filament-enhanced plasma-assisted CVD” J. Phys. D: Appl. Phys. 31 (1998) 3327-3330; hereafter Zhu).
Claim 4: Bruce in view of Ruan teaches the method of claim 1 (above). But Bruce is silent as to current density for the CVD system, therefore they do not explicitly teach a discharge current density within the claimed range. Zhu teaches of diamond deposition via CVD (See, for example, abstract). Zhu further teaches discharge currents of from greater than 0 to 0.6 A/cm2 achieve predictable CVD diamond growth and further wherein altering the discharge current density during CVD influences the growth rate of the diamond (See, for example, abstract, paragraph bridging pgs 3327-3328, Fig 1, pg 3329-3330). Therefore it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated a discharge current density of greater than 0 to 0.6 A/cm2 since it would predictably enhance the growth rate of CVD diamond and since when a primary reference is silent as to a certain detail, one of ordinary skill would be motivated to consult a secondary reference which satisfies the deficiencies of the primary reference. Although such a range is not explicitly 0.09 A/cm2 or more and 0.85 A/cm2 or less, it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated a discharge current density within the claimed range since in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976).
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bruce in view of Ruan and Twitchen as applied to claim 5 above, and further in view of Noguchi et al (US 2018/0223447; hereafter Noguchi).
Claim 6: Bruce in view of Ruan and Twitchen teaches the method of claim 5 (Above), wherein Twitchen a has taught a single layer of single crystal diamond as the underlying substrate, and further wherein the growth surface can substantially be 111 within several degrees (See, for example, [0067-68]), but it does not explicitly teach it as a claimed off angle in a [-1 -1 2] crystal axis direction (or symmetric directions) relative to 111. Noguchi teaches a method for producing a diamond substrate via CVD (See, for example, abstract, [0038]). Noguchi further teaches wherein the production of a diamond substrate with reduced defects can predictably be achieved by using an underlying substrate (foundation substrate), further diamond, with an off angle provided on the growth surface of the substrate with respect to a predetermined crystal plane orientation, further one wherein it possesses an off angle of from 2 to 15o in a -1 -1 2 direction relative to {111}. (See, for example, abstract, figures [0016-0019]). Therefore it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated an off angle of from 2 to 15o in a -1 -1 2 direction relative to {111} since it would predictably reduce various defects within the produced CVD diamond. Although 2 to 15o is not explicitly 0.5o to 8o as claimed, it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated an off axis angle within the claimed range since in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976).
Claim(s) 16 is rejected under 35 U.S.C. 103 as being unpatentable over Bruce in view of Ruan as applied to claim 1 above, and further in view of Fujimura et al (US 2006/0216514; hereafter Fujimura)
Claim 16: Bruce in view of Ruan teaches the method of claim 1 above, wherein Ruan has taught the deleterious nature of Si containing CVD chamber members (see above), but Bruce is silent as to the specifics of the members used in the chamber for performing the CVD, so it does not explicitly teach sapphire is used for an observation window of the chamber. Fujimura teaches a method of forming CVD diamond (See, for example, abstract). Fujimura further teaches wherein CVD chamber windows are commonly formed of sapphire or quartz to allow for sealing and transmission of radiation (See, for example, [0042]). Therefore it would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to have incorporated a sapphire window as it would predictably provide for sealing and transmission of radiation, such a microwave, and as it would avoid implementation of a silicon containing member (and associated impurities). As at least some form of radiation, such a microwave, passes through the window the window reads on an “observation window” as at least such radiation could be observed / noticed / perceived therethrough.
Response to Arguments
With respect to the 35 USC 112 b rejection, the examiner appreciates Applicant’s amendments attempting to overcome this rejection, but notes that there are still issues remaining as articulated above.
Applicant’s arguments that the references do not teach the newly added limitations are unconvincing in view of the restructured rejections over Bruce in view of Ruan (and additional secondary art as cited for particular further rejections of dependent claims, as discussed above).
With regards to the previous reliance upon Ruan, the Applicant argues that the “Office action has not offered any justification as to why a person of ordinary skill in the art… would have combined Bruce with Ruan…”…in view of three references that either do not exclude the use of silicon members or actively use them” pg 10. The examiner notes that the rejection at least claim 1 is only over Bruce in view of Ruan, thus there exist no additional “three references” to consider within the teachings of the actual applied art to claim 1. With respect to dependent claims wherein additional references has been applied, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). The chamber members / substrates of such argued prior art have not been relied upon in the applied rejections, nor is there any explicit teaching in such secondary references that using an Si containing member is requisite or critical to operation, nor do any actively discredit or teach away from non-Si containing components. Taken further, Applicant argues (pg 8) that “Scholz actually discloses at least at [0020] and [0024] that the chamber and window, respectively, can be made of glass, a silicon containing material”. First, glass is not inherently a silicon containing material, consider non-si containing glasses such as phosphate, borate, germinate, chalcogenide, and metallic glasses. Secondly, Scholz alternatively explicitly teaches the chamber may be made of non-Si containing materials such as “aluminum, stainless steel, … titanium nitride, tungsten carbide”([0020]) and the window made of “alumina ceramics” ([0024]). Applicant additionally argues that “Noguchi also uses silicon as substrate”, however the examiner notes that it has also taught a non Si-containing MgO substrate (See, for example, [0032]). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). Furthermore, “[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed….” In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
In light of the above, the examiner is not convinced by Applicant’s argument (pg 9-10) that there exists a “conflict in the teachings of Ruan and Scholz, Zhu, and Noguchi” as argued by applicant. Again, the rejections of at least the independent claim only rely upon Bruce in view of Ruan; the chamber members / substrates of such argued prior art have not been relied upon in the applied rejections, nor is there any explicit teaching in such secondary references that using an Si containing member is requisite or critical to operation, nor do any actively discredit or teach away from non-Si containing components; but on the contrary when taken collectively they have explicitly offered non-Si containing alternatives, and a teaching wherein Si-containing members generate defects.
Contrary to Applicant’s argument (pg 10), Ruan does explicitly offer a justification of avoiding Si-containing members, as it confirms that Si from the substrate or reactor walls is a contaminant source incorporating Si into diamond films during CVD growth processes. The examiner maintains that such an explicit teaching provides sufficient motivation for including a chamber that does not comprise a member containing Si as it would predictably reduce / avoid the occurrence of Si impurities and thus enhance the obtained diamond purity. The examiner is not convinced by applicant’s argument (pg 10-11) directed to interpretating recognition of a problem as recognition of the specific feature recited in the instant claims as grounds for nonobviousness. Ruan has explicitly identified both that Si in the substrate and the chamber walls is a contaminant source of Si in diamond, and has provided a predictable means of avoiding such a deleterious condition (such as using a material that does not contain Si, such as tungsten). Further, per MPEP 2144.04 II A. “Omission of an Element and Its Function is Obvious if the Function of the Element is Not Desired”, further still “The [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) see also id. “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” When considering the above, the examiner maintains reliance upon Bruce in view of Ruan is apt.
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 NATHAN H EMPIE whose telephone number is (571)270-1886. The examiner can normally be reached Monday-Thursday 5:30AM - 4 PM.
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/NATHAN H EMPIE/Primary Examiner, Art Unit 1712