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
2. Applicant’s election without traverse of a CVD single crystal diamond (Group I) in the reply filed on May 1, 2026 is acknowledged.
Claim Rejections - 35 USC § 103
3. 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.
4. Claim(s) 1-4, 6, 8, 9, and 11-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Khan (WO 2010/149775, of record) and further in view of Twitchen (WO 03052177) and/or Twitchen (WO 2010/149779).
Khan is directed to a fancy CVD single crystal diamond having H3 defects (H3 centres) and a most preferred concentration of single substitutional nitrogen atoms in their neutral charge state (Ns0) less than 50 ppb (corresponds with 0.05 ppm) (Table 1A and Table 5). Khan further states that the diamond would, if in the form of a 0.5 ct round brilliant cut, have a hie angle between 0 and 60 degrees (Page 52, Lines 25+). While Khan fails to expressly teach hue angles of at least 75 degrees, the aforementioned language in Khan suggests that additional hue angles would be within the scope of Khan, specifically when the diamond is not in the form of a 0.5 ct round brilliant cut. Twitchen ‘177 is similarly directed to fancy CVD materials and teaches hue angles less than 80 degrees (Page 5, 1st paragraph). Twitchen ‘ 779 similarly directed to fancy CVD materials and recognizes common hue angles (Page 2, Lines 1-5) as well as identifying hue angles that exceed 100 degrees (Page 25, Lines 10+-15). One of ordinary skill in the art would have found it obvious to use any number of common hue angles in the manufacture of fancy CVD materials taught by Khan (as a function of the desired optical properties).
Lastly, regarding claim 1 (and claim 6), a fair reading of Khan suggests the general manufacture of fancy colored diamonds via an irradiating and annealing method. Khan further states that the disclosed method provides diamond material in general, including that suitable for use in spintronic applications (Page 1, Lines 5+) and ornamental applications such as gemstones for jewelry (Page 39, Lines 30+). A fair reading of Khan suggests the general manufacture of fancy colored diamonds without limitation in regards to a linear dimension or a total volume. One of ordinary skill in the art would have found it obvious to use linear dimensions and/or total volumes that are consistent with those that are commonly used with diamonds, including the broad range of the dimensions required by the claimed invention absent a conclusive showing of unexpected results. It is additionally noted that Twitchen ‘577 refers to a CVD diamond layer that is preferably greater than 3 mm (Page 5, 2nd paragraph).
Regarding claim 2, Khan states that the diamond material can have (NV-+NV0)/NS0 greater than 0.16 (Table 5). Khan further states, though, that such a relationship is not required. Khan specifically states that the diamond material has one or more of the characteristics listed in Table 5 (Page 33, Lines 10-12). Thus, Khan is directed to diamond materials when (NV-+NV0)/NS0 is less than 0.16 and such fully encompasses the claimed range. One of ordinary skill in the art would have found it obvious to form a diamond material of Khan that satisfies the claimed invention given the aforementioned disclosed and absent a conclusive showing of unexpected results. It is emphasized that a value greater than 0.16 is not required by Khan. In fact, a wide variety of diamond materials encompassed by Khan would have a value less than 0.16 (for example, when V0, V-, NS0, and V chain absorption are individually satisfied).
With respect to claim 3, as detailed above, Twitchen ‘779 discloses a range of hue angles that substantially encompasses the claimed ranges.
Regarding claim 4, Khan is directed to a CVD single crystal diamond. While Khan fails to specifically disclose silicon vacancies (SV), the reference does state that an inventive concept focuses on maximizing production of NV centres, while minimizing other undesirable defects (Page 5, Lines 22+). One of ordinary skill in the art would have recognized the language of Khan as encompassing a CVD single crystal diamond having little or no silicon vacancies and such is seen to correspond with the claimed Si-V luminescence (e.g. zero silicon vacancies would result in luminescence of 0 as defined by the claims).
As to claim 8, Twitchen ‘779 recognizes the well-known and conventional color grades (Page 1, Lines 30+). Additionally, as detailed above, Khan teaches an “even more preferable” NS0 value of less than 100 ppb and such can be associated with any of the disclosed color grades (and still satisfy the claims). Essentially, one of ordinary skill in the art would have found it obvious to have a value less than 100 ppb with any of the conventional color grades absent a conclusive showing of unexpected results (values between 80 and 100 ppb can be associated with of the claimed color grades).
With respect to claim 9, given that the diamond material of Khan has applicability as gemstones for jewelry, it reasons that Khan would encompass the wide variety of conventional clarities required by the claimed invention. It is emphasized that the claims simply exclude diamonds that are included or slightly included, while including all diamonds that are flawless, internally flawless, very very slightly included, and very slightly included. It is further noted that Twitchen ‘177 identifies a wide variety of clarity grades encompassed by the claimed invention (Page 10, last paragraph).
Regarding claim 11, the diamond of Khan can include H3 defects (Table 2A) and as detailed above, a sum of NV- and NV0 can be less than 0.16. The combination of these features suggests a small ratio as claimed. One of ordinary skill in the art would have found it obvious to form a diamond of Khan with a claimed ratio less than 30 in light of the general disclosure of Khan and Applicant has not provided a conclusive showing of unexpected results for the claimed ratio (lack of comparative examples in which ratio is greater than 30).
As to claim 12, the diamond of Khan can be devoid of N3 defects, in which case the claimed ratio is 0.
With respect to claim 13-15, the claims are directed to a CVD single crystal diamond and the intended use of such a diamond fails to further define the structure eof the claimed diamond (the structure or characteristics of a diamond are not limited by the use of diamond in a mechanical element or an optical element).
Conclusion
5. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUSTIN R FISCHER whose telephone number is (571)272-1215. The examiner can normally be reached M-F 5:30-2:00.
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Justin Fischer
/JUSTIN R FISCHER/Primary Examiner, Art Unit 1749 September 8, 2026
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