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 July 24, 2024; September 5, 2024; February 7, 2025; and September 10, 2025 were 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.
At least one of claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least one of claims 1-20 of U.S. Patent No. 11,729,986. Although the claims at issue are not identical, they are not patentably distinct from each other because the structure claimed in the current application is not patentably distinguishable from the claims of the above U.S. Patent. Which is to say, the current application’s claims read on the above U.S. Patent and vice-versa.
At least one of claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least one of claims 1-20 of U.S. Patent No. 11,647,635. Although the claims at issue are not identical, they are not patentably distinct from each other because the structure claimed in the current application is not patentably distinguishable from the claims of the above U.S. Patent. Which is to say, the current application’s claims read on the above U.S. Patent and vice-versa.
Allowable Subject Matter
Claims 1-20 are allowed.
The following is an examiner’s statement of reasons for allowance: see below.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Regarding claim 1,
Prior art US 2021/0074727 A1 teaches in figure 5I, the oxygen scavenging layer 56 is on the wrong side of the ferroelectric layer 54L. Examiner notes a similar limitation was why the grandparent application, U.S. Patent No. 11,729,986 was allowed.
Prior art US 2020/0091171 A1 teaches in figure 3, the oxygen scavenging layer 20c is on the wrong side of the ferroelectric layer 20b.
Regarding claims 9 and 16,
Claims 9 and 16 are allowed for the same reasons as claim 1.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VINCENT WALL whose telephone number is (571)272-9567. The examiner can normally be reached Monday to Thursday at 7:30am to 2:30pm PST. Interviews can be scheduled on Tuesday thru Thursday at 10am PST or 2pm PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jessica Manno can be reached at 571-272-2339. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VINCENT WALL/Primary Examiner, Art Unit 2898
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