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 .
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.
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Claims 1-12, 14-22, and 26-27 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12359312 in view of Xiao (US 20140158580). The claims of 12359312 do not teach a silicon-nitrogen bond; however, Xiao teaches a method of forming a silicon oxycarbide layer on a surface of a substrate including a plasma enhanced ALD process ([0014]). Xiao teaches a silicon precursor molecule comprising two silicon-oxygen bonds and a silicon-nitrogen bond (abstract). It would have been prima facie obvious to one of ordinary skill in the art to modify the precursor of 12359312 to include a precursor as taught in Xiao because it is a known precursor in the art.
Claims 1-22 and 26-27 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12359312 in view of Yan (US 20160099143). The claims of 12359312 do not teach a silicon-nitrogen bond; however, Yan teaches the claimed precursors ([0007]). It would have been prima facie obvious to one of ordinary skill in the art to modify the precursor of 12359312 to include a precursor as taught in Yan because it is a known precursor in the art.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-12, 14-22, and 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over Xiao (US 20140158580) in view of Suzuki (US 20170323782) and Xue (US 2016/0276150).
Regarding Claims 1 and 8-12, Xiao teaches a method of forming a silicon oxycarbide layer on a surface of a substrate including a plasma enhanced ALD process ([0014]). Xiao teaches a silicon precursor molecule comprising two silicon-oxygen bonds and a silicon-nitrogen bond (abstract).
Xiao does not explicitly teach a method as claimed; however, Suzuki teaches a method of forming a silicon oxycarbide layer on a surface of a substrate (abstract), the method comprising the steps of: providing a substrate within a reaction chamber of a reactor ([0030]); providing an oxygen-free reactant to the reaction chamber ([0028], [0042]); and performing one or more deposition cycles ([0021]), wherein each deposition cycle comprises: providing a silicon precursor to the reaction chamber for a silicon precursor pulse period ([0037-0039]); and providing plasma power to an electrode for a plasma power period to form a plasma within the reactor ([0040-0043], remote plasma generator). It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the PEALD process of Xiao to be a method as taught in Suzuki, because Suzuki suggests it is a suitable PEALD process for silicon oxycarbide deposition and one of ordinary skill in the art would have had a reasonable expectation of predictably achieving the layer of Xiao with a process as in Suzuki.
The combined references do not explicitly teach a plasma is formed for a duration of the plasma power period and wherein during the plasma power period, the plasma power is pulsed with a duty cycle between greater than 0 and less than 75%; however, Xue teaches pulsing plasma power on and off at a pulse frequency of up to about 100 kHz, i.e. 0.01 msec, and a duty cycle between 0.1-100% ([0032-0035]). Xue does not teach extinguishing the plasma during the pulsing. Xue teaches the pulsing allows for improved film properties ([0032]). It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to modify the pulsed plasma of the combined references to be a pulsing, as suggested by Xue, for the benefit of improved film properties. 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05. It would have been prima facie obvious to one of ordinary skill in the art to select the duty cycle of the combined references to be any of those taught by Xue, including those within the claimed range, because Xue teaches they are all suitable for a pulsed power deposition process and one of ordinary skill in the art would have had a reasonable expectation of predictably achieving the product of the combined references with any of the taught duty cycles.
Regarding Claim 2, Suzuki teaches argon (Ar) and hydrogen (H2) ([0034]).
Regarding Claim 3, Suzuki teaches an embodiment using only Ar carrier gas as the second reactant gas ([0170]).
Regarding Claim 4, Suzuki teaches an embodiment of hydrogen with an argon carrier gas ([0170]). Suzuki teaches the growth rate is impacted by the gas mixture ([0129-0137], [0170]). “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).” MPEP 2144.05 II A. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to optimize the gas flow mixture, as suggested by Suzuki, in order to achieve a desirable growth rate, and in such an optimization one of ordinary skill in the art would have arrived at applicant’s claimed volume percent.
Regarding Claim 5, Suzuki teaches an embodiment of hydrogen with an argon carrier gas ([0170]).
Regarding Claims 6-7, Suzuki teaches a duration of the plasma power period is between 0.1 and 10 seconds ([0043]). Xue teaches the interval is an amount of time suitable for depositing a predetermined amount of the layer of material and treating all of the layer of material ([0045]). 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the plasma power period of Suzuki to be any of the plasma power periods taught in the reference, including those within the claimed range, because Suzuki teaches they are all suitable plasma power periods for use with the invention.
Xue teaches a duty cycle of 0.1-100% ([0034]). 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art to select the duty cycle of the combined references to be any of those taught by Xue, including those within the claimed range, because Xue teaches they are all suitable for a pulsed power deposition process and one of ordinary skill in the art would have had a reasonable expectation of predictably achieving the product of the combined references with any of the taught duty cycles.
Xue teaches pulsing at a frequency of between about 1Hz and 100kHz, i.e. 1000-0.01 msec. 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the pulse frequency to be any of the frequencies taught in the reference, including those within the claimed range, because Xue teaches they are all suitable plasma pulse frequencies for use with the invention.
Regarding Claim 14, Suzuki teaches wherein the silicon oxycarbide layer forms a spacer ([0016]).
Regarding Claim 15, Suzuki teaches wherein a dielectric constant of the silicon oxycarbide layer is less than 10 ([0162]). 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the dielectric constant of Suzuki to be any of the dielectric constants taught in the reference, including those within the claimed range, because Suzuki teaches they are all suitable dielectric constants for use with the invention.
Regarding Claim 16, Suzuki teaches wherein a wet etch rate of the silicon oxycarbide layer in 0.5% dilute hydrofluoric acid is less than 5 nm/minute ([0145]). 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the wet etch rate of Suzuki to be any of the wet etch rates taught in the reference, including those within the claimed range, because Suzuki teaches they are all suitable wet etch rates for use with the invention.
Regarding Claims 17-18, Suzuki teaches wherein the reactant is continuously provided to the reaction chamber during a single deposition cycle or more deposition cycles ([0042]).
Regarding Claim 19, Suzuki teaches the silicon precursor pulse period ceases prior to the plasma power period ([0166]).
Regarding Claim 20, Suzuki teaches a duration of the silicon precursor pulse period is between about 0.05 to about 5 seconds ([0039]). 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the precursor pulse period of Suzuki to be any of the precursor pulse periods taught in the reference, including those within the claimed range, because Suzuki teaches they are all suitable precursor pulse periods for use with the invention.
Regarding Claim 21, Suzuki teaches a temperature of the substrate is 200°C ([0165]).
Regarding Claim 22, Suzuki teaches a pressure within the reaction chamber during the deposition cycle is between about 6 to about 500 Torr ([0055], 800-66661 Pa). 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the pressure of Suzuki to be any of the pressures taught in the reference, including those within the claimed range, because Suzuki teaches they are all suitable pressures for use with the invention.
Regarding Claims 26-27, Xiao teaches each C represents a C1-C10 alkyl (R3, abstract). Xiao teaches each O represents an independently selected C1-C10 alkoxy group (R1 is C1-C10 alkyl and R2 is C1-C10 alkoxy, abstract). 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the carbon groups to be any of the groups taught in the reference, including those within the claimed range, because Xiao teaches they are all suitable groups for use with the invention.
Claim(s) 13 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Xiao (US 20140158580) in view of Suzuki (US 20170323782) and Xue (US 2016/0276150) as applied to claims 1-12, 14-22, and 26-27 above, and further in view of Yan (US 20160099143).
Regarding Claim 13, The combined references do not teach the claimed precursor; however, Yan teaches the claimed silicon precursors for ALD applications ([0007]). It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to modify the precursor of the combined references to include precursors, as taught in Yan, because they are known silicon precursors for ALD processes and one of ordinary skill in the art would have had a reasonable expectation of predictably achieving the coating of the combined references with a precursor as taught in Yan.
Regarding Claim 25, Xiao teaches atomic C in the layer ranges from about 0% to about 75% ([0088]). Xiao teaches concentration ratio of the oxygen source to the silicon precursor affects the carbon retention in the film ([0037]). 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05 I. It would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to select the concentrations of Suzuki to be any of the concentrations taught in the reference, including those within the claimed range, because Suzuki teaches they are all suitable concentrations for use with the invention.
Response to Arguments
Applicant’s arguments, see amendment, filed 2/13/2026, with respect to the previous prior art rejections have been fully considered and are persuasive. The rejections have been withdrawn. However, upon further consideration and as necessitated by the amendment, a new ground(s) of rejection is made as discussed above.
Applicant's other arguments filed 2/13/2026 have been fully considered but they are not persuasive.
Applicant argues no combination of the cited references teaches or suggests the backbone structure set forth in the claims. Applicant argues Xiao discloses chemical formulas that require N as a central atom and Suzuki discloses chemical formulas that do not include N and that are also distinct from the backbone structures of claim 9. In response to Applicant’s argument, Xiao teaches the claimed chemical formula of a silicon with two oxygen, one nitrogen, and one carbon bond (Formula A or B wherein R1 and R3 are alkyl groups and R2 is an alkoxy group, abstract).
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 TABATHA L PENNY whose telephone number is (571)270-5512. The examiner can normally be reached M-F 8:00-5:00.
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/TABATHA L PENNY/Primary Examiner, Art Unit 1712