DETAILED ACTION
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 1-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 12,099,024, hereinafter ‘024. Although the claims at issue are not identical, they are not patentably distinct from each other because they claim the same or identical invention with the same limitations as shown in the table below (emphasis added).
Claims of the Instant Application
Claims of ‘024
1. A method of analyzing a sample imaged by electron backscatter diffraction, the method comprising: identifying a plurality of Kikuchi bands in an electron backscatter diffraction image of a position on the sample;
forming, for each identified Kikuchi band, a respective vector representation of said Kikuchi band based at least in part on an estimate of the position on the sample;
determining a configuration of the sample by identifying a particular set of expected vector representations from a plurality of sets of expected vector representations as matching the vector representations of the plurality of identified Kikuchi bands,
forming, for each identified Kikuchi band, a respective point corresponding to the intersection between the vector representation of said Kikuchi band, and a cylindrically symmetrical surface, wherein the cylindrical axis of the surface is determined based at least in part on an estimate of the position on the sample; and
wherein said identifying a particular set of expected vector representations comprises matching the expected set of points corresponding to the particular set of expected vector representations with the points of the plurality of identified Kikuchi bands.
1. A method of analyzing a sample imaged by electron backscatter diffraction, the method comprising:
identifying a plurality of Kikuchi bands in an electron backscatter diffraction image of a position on the sample;
forming, for each identified Kikuchi band, a respective vector representation of said Kikuchi band based at least in part on an estimate of the position on the sample;
determining a configuration of the sample by identifying a particular set of expected vector representations from a plurality of sets of expected vector representations as matching the vector representations of the plurality of identified Kikuchi bands; and
forming, for each identified Kikuchi band, a respective point corresponding to the intersection between: the vector representation of said Kikuchi band, and a cylindrically symmetrical surface, wherein the cylindrical axis of the surface is determined based at least in part on an estimate of the position on the sample,
wherein said identifying a particular set of expected vector representations from a plurality of sets of vector representations as matching the vector representations of the plurality of identified Kikuchi bands comprises matching the expected set of points corresponding to the particular set of expected vector representations with the points of the plurality of identified Kikuchi bands,
wherein a point of the plurality of identified Kikuchi bands is matched with an expected point when an overlap calculated between a distribution centered on the point of the plurality of identified Kikuchi bands and a distribution centered on the expected point exceeds a pre-determined threshold, wherein at least one of the distributions is a Gaussian distribution.
2. The method according to claim 1 wherein determining a configuration further comprises:
obtaining a number of candidate sets of expected vector representations from the plurality of sets of expected vector representations by matching the angles of the vector representations, relative to a pre-determined co-ordinate axis, with the corresponding angles of the expected vector representations,
wherein the particular set of expected vector representations that matches the vector representations of the plurality of identified Kikuchi bands is identified from the number of candidate sets of expected vector representations.
2. The method according to claim 1 wherein determining a configuration further comprises:
obtaining a number of candidate sets of expected vector representations from the plurality of sets of expected vector representations by matching the angles of the vector representations, relative to a pre-determined co-ordinate axis, with the corresponding angles of the expected vector representations,
wherein the particular set of expected vector representations that matches the vector representations of the plurality of identified Kikuchi bands is identified from the number of candidate sets of expected vector representations.
3. The method according to claim 2 wherein obtaining a number of candidate sets of expected vector representations further comprises:
matching the relative angles of the vector representations around the pre-determined co-ordinate axis with the relative angles of the expected vector representations around the pre-determined co-ordinate axis.
3. The method according to claim 2 wherein obtaining a number of candidate sets of expected vector representations further comprises:
matching the relative angles of the vector representations around the pre-determined co-ordinate axis with the relative angles of the expected vector representations around the pre-determined co-ordinate axis.
4. The method according to claim 2 wherein the plurality of expected sets of vector representations comprise one or more master sets of vector representations, and wherein for each master set of vector representations the plurality of expected sets vector representations comprise one or more rotated sets of expected vectors generated by applying a respective rotation equivalent to applying rotation about the pre-determined co-ordinate axis followed by a rotation about a further co-ordinate axis.
4. The method according to claim 2 wherein the plurality of expected sets of vector representations comprise one or more master sets of vector representations, and wherein for each master set of vector representations the plurality of expected sets vector representations comprise one or more rotated sets of expected vectors generated by applying a respective rotation equivalent to applying rotation about the pre-determined co-ordinate axis followed by a rotation about a further co-ordinate axis.
5. The method according to claim 1 wherein said determining comprises identifying a rotation which matches the particular set of expected vector representations with the vector representations of the plurality of identified Kikuchi bands.
5. The method according to claim 1 wherein said determining comprises identifying a rotation which matches the particular set of expected vector representations with the vector representations of the plurality of identified Kikuchi bands.
6. The method according to claim 1 wherein determining a configuration further comprises:
for each of two or more sets of expected points from the plurality of sets of expected points, optimizing the estimate of the position on the sample based on said set of expected points;
identifying one of the two or more sets of expected points as the particular set of expected points based at least in part on the optimized estimates of the position on the sample.
6. The method according to claim 1 wherein determining a configuration further comprises:
for each of two or more sets of expected points from the plurality of sets of expected points, optimizing the estimate of the position on the sample based on said set of expected points;
identifying one of the two or more sets of expected points as the particular set of expected points based at least in part on the optimized estimates of the position on the sample.
7. The method according to claim 1, wherein a point is matched with an expected point when an overlap calculated between a distribution centered on the point with a distribution centered on the expected point exceeds a pre-determined threshold.
10. The method according to claim 7, wherein at least one of the distributions is a Gaussian distribution.
1. A method of analyzing a sample imaged by electron backscatter diffraction, the method comprising:
identifying a plurality of Kikuchi bands in an electron backscatter diffraction image of a position on the sample;
forming, for each identified Kikuchi band, a respective vector representation of said Kikuchi band based at least in part on an estimate of the position on the sample;
determining a configuration of the sample by identifying a particular set of expected vector representations from a plurality of sets of expected vector representations as matching the vector representations of the plurality of identified Kikuchi bands; and
forming, for each identified Kikuchi band, a respective point corresponding to the intersection between: the vector representation of said Kikuchi band, and a cylindrically symmetrical surface, wherein the cylindrical axis of the surface is determined based at least in part on an estimate of the position on the sample,
wherein said identifying a particular set of expected vector representations from a plurality of sets of vector representations as matching the vector representations of the plurality of identified Kikuchi bands comprises matching the expected set of points corresponding to the particular set of expected vector representations with the points of the plurality of identified Kikuchi bands,
wherein a point of the plurality of identified Kikuchi bands is matched with an expected point when an overlap calculated between a distribution centered on the point of the plurality of identified Kikuchi bands and a distribution centered on the expected point exceeds a pre-determined threshold, wherein at least one of the distributions is a Gaussian distribution.
8. The method according to claim 1, wherein identifying a particular set of expected points from a plurality of sets of expected points as matching the points of the plurality of identified Kikuchi bands comprises:
plotting, in a first image, distributions centered on each point of the points of the plurality of identified Kikuchi bands;
obtaining a second image comprising, for each point of the particular set of expected points, a distribution centered on said point;
wherein a particular set of expected points from a plurality of sets of expected points is identified as matching the points of the plurality of identified Kikuchi bands based on the intersection of the first and second images.
7. The method according to claim 1, wherein identifying a particular set of expected points from a plurality of sets of expected points as matching the points of the plurality of identified Kikuchi bands comprises:
plotting, in a first image, distributions centered on each point of the points of the plurality of identified Kikuchi bands;
obtaining a second image comprising, for each point of the particular set of expected points, a distribution centered on said point;
wherein a particular set of expected points from a plurality of sets of expected points is identified as matching the points of the plurality of identified Kikuchi bands based on the intersection of the first and second images.
9. The method according to claim 7, wherein characteristic widths of the distributions are based on the intensities of the corresponding points.
8. The method according to claim 1, wherein the characteristic widths of the distributions are based on the intensities of the corresponding points.
11. The method according to claim 1, further comprising:
obtaining the plurality of sets of expected vector representations, each set of expected vector representations corresponding to a respective known sample, wherein for each known sample the expected vector representations correspond to vector representations of Kikuchi bands of said known sample,
wherein the determined configuration is based on one or more properties of a particular known sample corresponding to the particular set of expected vector representations matched with the vector representations of the plurality of identified Kikuchi bands.
9. The method according to claim 1, further comprising:
obtaining the plurality of sets of expected vector representations, each set of expected vector representations corresponding to a respective known sample, wherein for each known sample the expected vector representations correspond to vector representations of Kikuchi bands of said known sample,
wherein the determined configuration is based on one or more properties of a particular known sample corresponding to the particular set of expected vector representations matched with the vector representations of the plurality of identified Kikuchi bands.
12. The method according to claim 11 to wherein the Kikuchi bands of one or more of the known samples are identified from simulated EBSD images.
10. The method according to claim 9 to wherein the Kikuchi bands of one or more of the known samples are identified from simulated EBSD images.
13. The method according to claim 11 wherein the Kikuchi bands of one or more of the known samples are identified from experimental EBSD images.
11. The method according to claim 9 wherein the Kikuchi bands of one or more of the known samples are identified from experimental EBSD images.
14. The method according to claim 1, wherein, for each Kikuchi band, the vector representation of the respective Kikuchi band is determined based on a plane defined by the Kikuchi band.
12. The method according to claim 1, wherein, for each Kikuchi band, the vector representation of the respective Kikuchi band is determined based on a plane defined by the Kikuchi band.
15. The method according to claim 14 wherein, for each Kikuchi band, the vector representation of the respective Kikuchi band is based on a normal vector of the plane defined by the Kikuchi band
13. The method according to claim 12 wherein, for each Kikuchi band, the vector representation of the respective Kikuchi band is based on a normal vector of the plane defined by the Kikuchi band.
16. The method according to claim 1, wherein determining a configuration further comprises:
for each of two or more sets of expected vector representations from the plurality of sets of expected vector representations, optimizing the estimate of the position on the sample based on said set of expected vector representations; and
identifying one of the two or more sets of expected vector representations as the particular set of expected vector representations based at least in part on the optimized estimates of the position on the sample.
14. The method according to claim 1, wherein determining a configuration further comprises:
for each of two or more sets of expected vector representations from the plurality of sets of expected vector representations, optimizing the estimate of the position on the sample based on said set of expected vector representations; and
identifying one of the two or more sets of expected vector representations as the particular set of expected vector representations based at least in part on the optimized estimates of the position on the sample.
17. The method of claim 1, wherein the determined configuration comprises any one or more of the group consisting of:
a crystalline phase in the sample;
the unit cell dimensions of a crystal in the sample;
the atoms in the cell of a crystal in the sample;
a lattice orientation in the sample; and a local lattice deformation present in the sample; strain state.
15. The method of claim 1, wherein the determined configuration comprises any one or more of the group consisting of:
a crystalline phase in the sample; the unit cell dimensions of a crystal in the sample;
the atoms in the cell of a crystal in the sample;
a lattice orientation in the sample; and a local lattice deformation present in the sample; strain state.
As seen from the mapping above, claims 1-15 of ‘024 includes all the limitations of claims 1-17 of the instant application while also reciting further limitations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HANWAY CHANG whose telephone number is (571)270-5766. The examiner can normally be reached Monday - Friday 7:30 AM - 4:00 PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Georgia Epps can be reached at (571) 272-2328. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Hanway Chang
/HC/ Examiner, Art Unit 2878
/GEORGIA Y EPPS/ Supervisory Patent Examiner, Art Unit 2878
