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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,423,004. Although the claims at issue are not identical, they are not patentably distinct from each other because because the claims of the issued patent make obvious the claims of the pending application in that the claims are directed to substantially the same subject matter as the parent case though not necessarily presented in the same sequential order or the same claim numbering as shown in the table below (for purposes of illustration rather than limitation).
Instant Application: 19/319,146
Patent: 12,423,004
Claim 1. A system comprising one or more processors configured to: determine, using first data relating to a plurality of non-volatile memory devices, one or more program parameters of a plurality of rows of cells of a non-volatile memory; determine, using the first data, a first threshold of a first parameter of each row based at least in part on the one or more program parameters of the plurality of rows; determine, by changing a programming time of each row, an optimized set of parameters for each row of the plurality of rows that causes the first parameter not to cross the first threshold; and provide the optimized set of parameters to a controller of a memory system, wherein the controller is configured program data to the plurality of rows using the optimized set of parameters for each row of the plurality of rows, wherein the first parameter comprises an average programming time, an average of bit error rate (BER) per page (page BER), or a standard deviation of page BER.
Claim 1. A system comprising one or more processors configured to: determine, using first data relating to a sample set of non-volatile memory devices, one or more program parameters of a plurality of rows of cells of a non-volatile memory; determine, using the first data, a first threshold of a first parameter of each row based at least in part on the one or more program parameters of the plurality of rows; determine, by changing a programming time of each row, a set of parameters of each row that causes the first parameter not to cross the first threshold; determine a second threshold of a second parameter of each row based at least in part on production information that includes production statistics of a plurality of dies as a result of mass production; adjust the programming time of each row to cause the second parameter not to cross the second threshold; and program data to a first row of the plurality of rows using the set of parameters of the first row and the adjusted programming time of the first row.
“A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d at 896, 225 USPQ at 651 (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents); In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed. Cir. 1998) (affirming a holding of obviousness-type double patenting where a patent application claim to a genus is anticipated by a patent claim to a species within that genus). “ELI LILLY AND COMPANY v BARR LABORATORIES, INC., United States Court of Appeals for the Federal Circuit, ON PETITION FOR REHEARING EN BANC (DECIDED: May 30, 2001).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARDOCHEE CHERY whose telephone number is (571)272-4246. The examiner can normally be reached 900-500.
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/MARDOCHEE CHERY/Primary Examiner, Art Unit 2133
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