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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 08/23/2024 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 1-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-6 of U.S. Patent No. 12,107,151 (hereinafter “Chuang” or “cited patent”). Although the claims at issue are not identical, they are not patentably distinct from each other because the pending claims recite limitations already protected in at least one embodiment described in the patented claims. Below, the pending claims are compared to the relevant limitations in the cited patent. The patented claim language is italicized.
Pending Claim 1 recites a semiconductor device, comprising:
a gate structure on a substrate, wherein the gate structure comprises a metal gate;
Patented Claim 1 recites a semiconductor device, comprising:
a gate structure on a substrate, wherein the gate structure comprises a metal gate;
a first spacer on sidewalls of gate structure;
a polymer block adjacent to the first spacer and on a corner between the gate structure and the substrate;
a first spacer on sidewalls of gate structure;
a polymer block adjacent to the first spacer and on a corner between the gate structure and the substrate;
an interfacial layer under the polymer block; and
a source/drain region adjacent to two sides of the first spacer.
an interfacial layer under the polymer block; and
a source/drain region adjacent to two sides of the first spacer.
a second spacer on sidewalls of the first spacer;
Patented Claim 2 recites the semiconductor device of claim 1, further comprising a second spacer on sidewalls of the first spacer,
The pending application differs from the cited patent by including a second spacer on sidewalls of the first spacer. This limitation is found in Claim 2 of the cited patent and in combination with Claim 1 of the Chuang, creates an embodiment which makes obvious the invention of the pending application. Applicant’s figures and specification do not support any embodiment where the polymer block is located outside a space between the first and the second spacer and it would have been obvious for the second spacer to be over both the first spacer and the polymer block. The pending application is not patentably distinct from the cited patent as it recites an embodiment already found in and made obvious by the already protect claim language.
For brevity, the pending dependent claims are matched with their equivalent in the cited patent without repetition of claim language.
Pending Claim 2 is anticipated by Patented Claim 2.
Pending Claim 3 is anticipated by Patented Claim 3.
Pending Claim 4 is anticipated by Patented Claim 4.
Pending Claim 5 is anticipated by Patented Claim 5.
Pending Claim 6 is anticipated by Patented Claim 6.
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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