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 .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-2, 4-13 and 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 12,119,416 in view of Korevaar et al. (US 2012/0260978).
Claims 1-24 of U.S. Patent No. 12,119,416 include the limitations of instant claims 1-2, 4-13 and 15-20 including a photovoltaic device comprising: a substrate; a transparent conductive oxide layer residing over the substrate; a buffer layer including: a discontinuous layer including MnOx, having a dosage of Mn that is at least 0.05 µg/cm2; and a void formed through the discontinuous layer occupied by a material other than MnOx; an absorber layer doped with a group V dopant, and residing over the buffer layer; and a back contact residing over the absorber layer.
Claims 1-24 of U.S. Patent No. 12,119,416 do not include the limitations an n-p junction including: a n-type buffer layer and a p-type absorber layer doped with a group V dopant, the p-type absorber layer including: a charge carrier concentration range of about 3 x 1017 to about 2 x 1019; and a thickness range of about 1 nm to about 200 nm.
Korevaar discloses a photovoltaic device in Figure 3 comprising:
a substrate (110) ([38]);
a transparent conductive oxide layer (132) residing over the substrate ([38]-[39]);
a n-p junction residing over the substrate ([57] and [61]), the n-p junction including:
a n-type or a p-type buffer layer (patterned first semiconductor layer 150) including:
a discontinuous layer (150) ([57], layer 150); and
a void (section filled by layer 140) formed through the discontinuous layer (150) occupied by a material other than MnOx (section 140 can be silicon oxide, titanium oxide and/or silicon nitride, [42]);
a p-type or a n-type absorber layer (absorber can include layers 160 and 180) doped with a group V dopant ([60]-[61] and [67]), and
the p- type absorber layer (layers 160 and 180) residing over the buffer layer (150) (Figure 3); and
a back contact (190) residing over the absorber layer ([68]).
Korevaar additionally discloses that a thickness of the absorber layer (180) is in a thickness range of about 1 nm to about 200 nm ([65], see 50-200nm).
Korevaar additionally discloses that the absorber layer (180) includes a charge carrier concentration range of about 1017 to about 1020 ([64]), but does not disclose the specifically claimed range of a charge carrier concentration range of about 3 x 1017 to about 2 x 1019. However, In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify claims 1-24 of U.S. Patent No. 12,119,416 to include the limitations an n-p junction including: a n-type buffer layer and a p-type absorber layer doped with a group V dopant, the p-type absorber layer including: a charge carrier concentration range of about 3 x 1017 to about 2 x 1019; and a thickness range of about 1 nm to about 200 nm, as taught by Korevaar, because it would amount to nothing more than the combination of prior art elements according to known methods to yield predictable results.
Allowable Subject Matter
Claims 1-2, 4-13 and 15-20 would be allowable if rewritten to overcome the double patenting rejection as set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claims 3 and 14 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
The closest prior art of Korevaar, Buller and Walukiewicz, alone or in combination, does not disclose, suggest or render obvious the limitation that the discontinuous layer is MnOX with a dosage of Mn that is at least 0.05 µg/cm2 in combination with the other claim limitations.
Response to Arguments
Applicant’s arguments and amendments with respect to the prior art rejection over the Korevaar reference have been fully considered and are persuasive. The prior art rejection over the Korevaar reference has been withdrawn.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LINDSEY A BUCK whose telephone number is (571)270-1234. The examiner can normally be reached Monday-Friday 9am-5:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Martin can be reached at (571)270-7871. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LINDSEY A BUCK/Primary Examiner, Art Unit 1728
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