DETAILED ACTION
Response to Amendment
Applicant's amendment filed 3/25/2026 has been entered. Currently, claims 1-4 and 6-11 are pending, claims 5 is canceled and claims 6-11 are withdrawn.
Claim Rejections - 35 USC § 102
Claims 1-4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Du et al. (Adv. Optical. Mater. 2020, Vol. 8, 1901848, pgs. 1-8 and Supporting information).
With regard to claims 1, 2 and 4, the Du et al. make near-infrared luminescent magnesium gallogermanates having sample compositions of Mg1.4Ga1.2Ge0.4O4 and Mg1.5Ga1Ge0.5O4, which are empirical formulae that are same as compositions having the formulae Mg2.8Ga2.4Ge0.8O8 and Mg3Ga2GeO8, respectively, and which read on the phosphor of formula (1) in claim 4 (Table S1 and pg. 2, right column). This composition has a same crystal structure as the magnesium gallogermanate Mg3Ga2GeO8 as it is a magnesium gallogermanate with a spinel-type crystal structures that will have tetrahedral and octahedral sites that are the same as applicants’ phosphor host crystal (pg. 2, right column). As can be seen in Figure S1 for the embodiment where x = 0.3, the excitation spectrum has two peaks in the range of 370-700 nm, the excitation using 420 nm light results in an emission centered around 709 nm and the fluorescence spectrum is unimodal from 700 nm to the end of the figure at approximately 850 nm (Figure S1 and pg. 3, left column).
Given that the composition, the crystal structure, the peak shape of the excitation spectrum and the emission spectrum are the same as claimed, the sample compositions of x = 0.4 and x = 0.5 taught in Du et al. will inherently have a fluorescence peak from 700 to 950 nm, a unimodal shape from 700 to 950 nm when measured in the manner claimed and a half width as claimed.
With regard to claim 3, the Examiner notes that the excitation spectra of the prior art are measured at 709 nm while applicants measure theirs at 915 nm (Figure S1). Given that the composition, the crystal structure having multiple emission sites, the maxima of the two peaks in the range of 370-700 nm of the excitation spectrum and the emission spectrum are the same as claimed, the sample compositions of x = 0.4 and x = 0.5 taught in Du et al. will inherently have a maximum intensity ratio of 70% or more as claimed when measured in the NIR at 915 nm absent objective evidence to the contrary.
Claims 1-4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dai et al. (CN 108531175).
With regard to claims 1-4, Dai et al. teach a near-infrared phosphor having the formula Mg3-xGa2CrxGeO8 and the specific examples where Cr3+ is present at x = 0.005 and x = 0.01, which reads on the phosphor of formula (1) in claim 4 ([0057] and Figures 3 and 4). The relative intensities between the red excitation peak around 600 nm and the blue excitation peak around 450 nm of the excitation spectrum of sample ‘a’ of Figure 4 is approximately 70% (= 125/175). The emission peak of the spectra ‘a’ and ‘b’ in Figure 3 is approximately 730 nm, which is in the range of claim 1.
Given that the composition, the crystal structure having multiple emission sites, the peak shape of the excitation spectrum and the emission spectrum are the same as claimed and preferentially disclosed, the sample compositions having Cr of x = 0.005 and x = 0.01 taught in Dai et al. will inherently have a unimodal shape from 700 to 950 nm when measured in the manner claimed and a half width as claimed when measured using 425 nm excitation light.
Claim 1 and 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jiao et al. (CN 108998019).
With regard to claims 1 and 4, Jiao et al. teach a near-infrared phosphor having the formula Mg3Ga2-xGeO8 : xCr3+ and the specific example where Cr3+ is present at x = 0.01, which reads on the phosphor of formula (1) in claim 4 (Example 1). The emission spectrum has a peak around 700 nm with a broad band emission [0030]. The emission spectrum in Figure 3 for x= 0.01 looks like a single blob of emission at least from 700-950 nm and would read on applicants’ unimodal shape within the range of 700-950 nm when measured in the manner claimed (Figure 3).
Response to Arguments
Applicant’s arguments, see Remarks, filed 3/25/2026, with respect to the 112(b) and (d) rejections have been fully considered and are persuasive. The relevant rejections have been withdrawn.
Applicant's arguments filed 3/25/2026 have been fully considered but they are not persuasive.
Applicants argue that none of Du et al., Dai et al. or Jiao et al. teach discrete spectral data or the unimodal shape required in claim 1.
While the Examiner agrees that the specific data plot, which are functional limitations/properties of the phosphor, are not present in Du et al., Dai et al. or Jiao et al., the Examiner notes that he relied upon the totality of evidence in each of these references to make the determination that the phosphors of Du et al., Dai et al. and Jiao et al. would inherently exhibit a unimodal shape if the fluorescence of the phosphors in each of the references were measured in the same manner as claimed, i.e. as an aggregate of spectral intensities at every 10 nm within the range of 700 nm to 950 nm.
As such, the Examiner has provided “a basis in fact and/or technical reasoning to reasonably support the determination that the allegedly inherent characteristic necessarily flows from the teachings of the applied prior art.” Please see MPEP 2112(IV) and Ex parte Levy, 17 USPQ2d 1461, 1464 (Bd. Pat. App. & Inter. 1990). It has also been held that “[w]hen the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” Please see MPEP 2112.01(I) and In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Applicants have not provided a showing or evidence to overcome the Examiner's prima facie case of inherency.
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 GERARD T HIGGINS whose telephone number is (571)270-3467. The examiner can normally be reached M-F 9:30-6pm.
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/Gerard Higgins/Primary Examiner, Art Unit 1785
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