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 .
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim 2 is rejected under 35 U.S.C. 102(a)(1) and (a) (2) as being anticipated by Pyon et al (US 2018/0166454).
With respect to Claim 2, Pyon et al discloses a device (Figure 4B) comprising : a source/drain region (Figure 4B, S/D); a channel region (Figure 4B, below PGS and between two S/D regions) adjacent the source/drain region; a gate structure (Figure 4B, PGS) over the channel region; a first inter-layer dielectric (ILD 1a) over the gate structure and the source/drain region; a contact (Figure 4B, PPLG) extending through the first inter-layer dielectric (Figure 4B, ILD 1a) to contact the gate structure (paragraph 72), an upper portion of the contact protruding from a top surface of the inter-layer dielectric; and a conductive feature (Figure 4B, SBL) on the upper portion of the contact. See Figure 4B and corresponding text, especially paragraph 72.
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 2-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12, 148,622. Although the claims at issue are not identical, they are not patentably distinct from each other because with respect to Claim 2 , U.S. Patent No. 12, 148,622 discloses a device comprising : a source/drain region; a channel region adjacent the source/drain region; a gate structure over the channel region; a first inter-layer dielectric over the gate structure and the source/drain region; a contact extending through the first inter-layer dielectric to contact the gate structure, an upper portion of the contact protruding from a top surface of the inter-layer dielectric; and a conductive feature on the upper portion of the contact. See Claim 1 of U.S. Patent No. 12, 148,622.
Claim 1 of U.S. Patent No. 12, 148,622 differs from the Claims at hand in that Claim 1 of U.S. Patent No. 12, 148,622 does not disclose a second inter-layer dielectric layer.
It would have been obvious to one of ordinary skill in the art, before the effective date of the invention, to omit the second inter level dielectric layer and arrive at the present Claim limitations as omission of an element is obvious if the function of the element is not desired. See Ex parte Wu, 10 USPQ 2031 (BPAI 1989).
With respect to Claim 3, Claim 3 corresponds to Claim 2 of US Patent No. 12, 148,622.
With respect to Claim 4, Claim 4 corresponds to Claim 3 of US Patent No. 12, 148,622.
With respect to Claim 5, Claim 5 corresponds to Claim 6 of US Patent No. 12, 148,622.
With respect to Claim 6, Claim 6 corresponds to Claim 7 of US Patent No. 12, 148,622.
With respect to Claim 7, Claim 7 corresponds to Claim 1 of US Patent No. 12, 148,622.
With respect to Claim 8, Claim 8 corresponds to Claim 1 of US Patent No. 12, 148,622.
With respect to Claim 9, Claim 9 corresponds to Claim 8 of US Patent No. 12, 148,622.
With respect to Claim 10, Claim 10 corresponds to Claim 8 of US Patent No. 12, 148,622.
With respect to Claim 11, Claim 11 corresponds to Claims 10-12 of US Patent No. 12, 148,622.
With respect to Claim 12, changes in shape are prima facie obvious. See In re Dailey, 149 USPQ 47 (CCPA 1976).
With respect to Claim 13, changes in shape are prima facie obvious. See In re Dailey, 149 USPQ 47 (CCPA 1976).
With respect to Claim 14, Claim 14 corresponds to Claim 8 of US Patent No. 12, 148,622.
With respect to Claim 15, Claim 15 corresponds to Claim 8 of US Patent No. 12, 148,622.
With respect to Claim 16, Claim 16 corresponds to Claim 20 of US Patent No. 12, 148,622.
With respect to Claim 17, Claim 17 corresponds to Claims 13 and 20 of US Patent No. 12, 148,622.
With respect to Claim 18, Claim 18 corresponds to Claim 13 of US Patent No. 12, 148,622.
With respect to Claim 19, Claim 19 corresponds to Claim 1 of US Patent No. 12, 148,622.
With respect to Claim 20-21, the use of known dopants and conductors would be within the skill of one of ordinary skill in the art.
Conclusion
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AGG
July 18, 2026
/ALEXANDER G GHYKA/Primary Examiner, Art Unit 2812
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