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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 08/22/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,125,889 (hereinafter “Chen” or “cited patent”). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims amount to a repetition of already protected limitations in the cited patent and differ by removing elements non-critical to the invention of Chen. Below, the pending claims are matched to the claim language of the cited patent. The patented claim language is italicized.
Pending Claim 21 recites a method comprising:
forming a source/drain structure in a semiconductor layer, wherein the source/drain structure is disposed adjacent to a gate spacer;
Patented Claim 1 recites a method, comprising:
forming a source/drain feature in a source/drain region of the semiconductor device, wherein the source/drain feature is adjacent the gate spacer;
after removing a portion of the gate spacer, forming a contact etch stop layer over a remainder of the gate spacer and the source/drain structure; and
forming a source/drain contact on the source/drain structure, wherein the source/drain contact is disposed adjacent to the contact etch stop layer.
after forming the source/drain feature, performing an etch process to remove a first portion of the gate spacer, wherein a second portion of the gate spacer remains between the sidewall of the gate stack and the source/drain feature;
forming a contact etch stop layer on the gate spacer, wherein the contact etch stop layer is disposed on a top surface of the second portion of the gate spacer; and
forming a source/drain contact on the source/drain feature and adjacent the contact etch stop layer.
The cited patent includes the additional limitations for “receiving a semiconductor device including a gate stack disposed over a channel region of the semiconductor device;
forming a gate spacer on a sidewall of the gate stack; and
forming the source/drain feature, performing an etch process to remove a first portion of the gate spacer, wherein a second portion of the gate spacer remains between the sidewall of the gate stack and the source/drain feature”.
However, the removal of these limitations does not provide for a patentably distinct invention. For example, a gate stack and gate spacer would have been obvious to have included in the pending application in a gate spacer for the source/drain structure to be disposed next to. Similarly an etch process would have been needed to remove a portion of the gate spacer. These and other limitations are obvious process steps and the removal of the steps does not result in a patentably distinct invention.
For brevity, the dependent claims are matched to their equivalent in the cited patent without repetition of the claim language.
Pending Claim 22 is unpatentable in view of Patented Claim 2.
Pending Claim 23 is unpatentable in view of Patented Claim 7.
Pending Claim 24 is obvious in view of Patented Claim 2.
Pending Claim 25 is unpatentable in view of Patented Claim 8.
Pending Claim 26 is unpatentable in view of Patented Claim 3.
Pending Claim 27 is obvious in view of Patented Claims 3 & 13.
Pending Claim 28 is obvious in view of Patented Claim 6.
Pending Claim 29 is obvious in view of Patented Claim 4.
Pending Claim 30 is obvious in view of Patented Claim 9.
Pending Claim 31 recites a method for forming the device of Claim 8 and is obvious in view of Claims 1 and 8. The pending claim differs from the cited patent by rewording the first contact etch stop layer and second contact etch stop layer to now be referred to as a first dielectric layer and a second dielectric layer. The method is not found to be patentably distinct from Claims 1 and 8 from the cited patent.
Pending Claim 32 is obvious in view of Patented Claim 8.
Pending Claim 33 is obvious in view of Patented Claims 10 & 11.
Pending Claim 34 is obvious in view of Patented Claim 8.
Pending Claim 35 is obvious in view of Patented Claim 15 & 19.
Pending Claim 36 is obvious in view of Patented Claims 15 & 16.
Pending Claim 37 is obvious in view of patented Claim 8 and differs from the cited patent by rewording the L-shaped gate spacers as being gate spacers with upper and lower portions of differing thicknesses. This rewording is not found to be patentably distinct from the cited patent as they both describe the same structure for the gate spacer. While the cited patent includes a limitation for the gate spacers and contact etch stop layer have different dielectric constants, it would have been obvious to form these two layers with different materials for relieving stress during deposition, enhancing electrical isolation and/or providing different etching profiles for manufacturing steps.
Pending Claim 38 is obvious in view of Patented Claims 8 & 10.
Pending Claim 39 is obvious in view of Patented Claim 8.
Pending Claim 40 is obvious in view of Patented Claims 8 & 15.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID C SPALLA whose telephone number is (303)297-4298. The examiner can normally be reached Mon-Fri 10am-5pm MST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Britt Hanley can be reached at 571-270-3042. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID C SPALLA/ Primary Examiner, Art Unit 2893
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