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 Species A, claims 1-11 and 22, in the reply filed on 08/31/2026 is acknowledged.
Claims 12-21 and 23 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected an organic light emitting diode including a blue emitting material layer, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/31/2026.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d).
Claim Objections
Claim 2 is objected to because of the following informalities: The sub letter “p” is illegible and unclear on Chemical Formula 2 in claim 2. Appropriate correction is required.
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 6 and 8-11 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 6 recite “ wherein the emissive layer has a single emitting part”; Claim 8 recites “wherein the emissive layer includes: a first emitting part…; a second emitting part…, and wherein the second emitting part includes the at least one emitting material layer and the electron transport layer.”; and Claim 11 recites “wherein the emissive layer includes: a first emitting part…; a second emitting part…; a third emitting part and wherein the third emitting part includes the at least one emitting material layer and the electron transport layer.”. However, the claims as written are indefinite and unclear. Independent 1 recites “an emissive layer disposed between the first electrode and the second electrode, and including at least one emitting part...” Therefore, the emissive layer of independent claim 1 has already recited at least one emitting part. Are the “at least one emitting part “ recited in claim 1 included in those recited in claims 6 and 8-11 or different emitting parts? The antecedent basis is not clear, particularly in light of the recitation in claim 1. For example, examiner suggests applicants amend claim 6 to recite “ wherein the emissive layer including the at least one emitting part is a single emitting part.” Appropriate correction is required.
Claims 9 and 10 depend on claim 8; therefore, the claims are also indefinite and rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. Appropriate correction is required.
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 1-11 and 22 are provisionally rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-21 of copending Application No. 18/242,196 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant claims and copending application ‘196 recite an organic light emitting diode include a first electrode; a second electrode facing the first electrode; and an emissive layer disposed between the first electrode and the second electrode, and comprising at least one emitting part, wherein an emitting part include at least one emitting material layer and an electron transport layer; wherein the electron transport layer comprising a first electron transport layer; and a second electron transport layer. Both the instant claims and copending application ‘196 recite open claim language, “comprising”; therefore, other layers may be included in their respective inventions. The first electron transport layer of the instant claims includes a first electron transport material represented by a structure of Chemical Formula 1 as well as Chemical Formula 2 corresponds to the second electron transport material of copending application ‘196 having a structure of chemical formula 4 and chemical formula 5. Furthermore, the second electron transport layer of the instant claims includes a second electron transport material represented by a structure of Chemical Formula 4 as well as Chemical Formula 5 corresponds to the first electron transport material of copending application ‘196 having a structure of chemical formula 1 and chemical formula 2. Products of identical chemical composition cannot have mutually exclusive properties. A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. [MPEP 2112.01 In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)].Although the transport material are switch from the first and second transport layers of the instant claims to second and first transport layer of copending application ‘126, one of ordinary skilled in the art would understand the layers are the same and obvious variants of each other, absent any evidence in the contrary. Katana Silicon Technologies LLC v. Micron Technology, Inc. (Fed. Cir. 2026)
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See Wallikewitz et al. (US 2017/0170411 A1; see abstract, claims, examples and drawings) teach an organic light-emitting diode comprising an emission layer and electron transport layer stack of at least two electron transport layers as instantly claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANCEITY N ROBINSON whose telephone number is (571)270-3786. The examiner can normally be reached Monday-Friday (8:00 am-6:00 pm; IFP; PHP).
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/CHANCEITY N ROBINSON/ Primary Examiner, Art Unit 1737
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