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 .
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. 11,393,674. Although the claims at issue are not identical, they are not patentably distinct from each other because with respect to present Claim 2, U.S. Patent No. 11,393,674 discloses performing a first atomic layer deposition process to deposit a first silicon nitride layer over a wafer; after the first silicon nitride layer is deposited, forming an additional layer comprising a material different from silicon nitride ( U.S. Patent No. 11,393,674, Claim 1 discloses forming a hardmask layer); performing a second atomic layer deposition process to deposit a second silicon nitride layer over the additional layer, wherein a first one of the first atomic layer deposition process and the second atomic layer deposition process comprises; introducing a nitrogen-containing precursor into a first process chamber and purging the nitrogen-containing precursor from the first process chamber; and introducing hydrogen radicals into the first process chamber and purging the hydrogen radicals from the first process chamber, wherein a second one of the first atomic layer deposition process and the second atomic deposition process comprises; introducing the nitrogen-containing precursor into a second process chamber and purging the nitrogen-containing precursor from the second process chamber, wherein the second one is free from processes of including hydrogen radicals into the second process chamber. See Claim 1 of U.S. Patent No. 11,393,674 .
U.S. Patent No. 11,393,674 differs from the present Claims in that U.S. Patent No. 11,393,674 discloses additional steps.
It would have been obvious to one of ordinary skill in the art, before the effective date of the present invention, to arrive at the presently claimed limitations, as omission of an element and its function is obvious if the function of the element is not desired. See Ex Parte Wu, 10 USPQ 2031 (BPAI 1989).
With respect to Claims 3-4, the Examiner takes Official Notice that silicon oxide and amorphous silicon are well known hard mask materials in the art.
With respect to Claim 5, Claim 5 corresponds to Claim 1 of U.S. Patent No. 11,393,674.
With respect to Claim 6, Claim 6 corresponds to Claim 11 of U.S. Patent No. 11,393,674.
With respect to Claim 7, Claim 7 corresponds to Claim 3 of U.S. Patent No. 11,393,674.
With respect to Claim 8, changes in shape are prima facie obvious in the absence of unobvious results. See In re Dailey, 149 USPQ 47 (CCPA 1976).
With respect to Claim 9, the Examiner takes Official Notice that using the same mask to etch two layers is well known in the art, depending on the desired shape.
With respect to Claim 10, Claim 10 corresponds to Claim 8 of U.S. Patent No. 11,393,674.
With respect to Claim 11, Claim 11 corresponds to Claims 5 and 8 of U.S. Patent No. 11,393,674.
With respect to Claim 12, Claim 12 corresponds to Claim 8 of U.S. Patent No. 11,393,674.
With respect to Claim 13, Claim 13 corresponds to Claim 7 of U.S. Patent No. 11,393,674.
With respect to Claim 14, changes in shape are prima facie obvious in the absence of unobvious results. See In re Dailey, 149 USPQ 47 (CCPA 1976).
With respect to Claim 15, the physical limitations of Claim 15 are inherent as of the reaction conditions are disclosed.
With respect to Claim 16, optimization of reactant ratios would be within the skill of one of ordinary skill in the art as a matter of process engineering.
With respect to Claim 17, Claim 17 corresponds to Claim 15 of U.S. Patent No. 11,393,674.
With respect to Claim 18, Claim 18 corresponds to Claim 15 of U.S. Patent No. 11,393,674.
With respect to Claim 19, Claim 19 corresponds to Claims 15 and 20 of U.S. Patent No. 11,393,674.
With respect to Claim 20, Claim 20 corresponds to Claims 15 and 20 of U.S. Patent No. 11,393,674.
With respect to Claim 21, the Examiner takes Official Notice that amorphous silicon is a well- known hard mask materials in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDER G GHYKA whose telephone number is (571)272-1669. The examiner can normally be reached Monday-Friday 9-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christine Kim can be reached at 571 272-8458. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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AGG
July 10, 2026
/ALEXANDER G GHYKA/Primary Examiner, Art Unit 2812
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