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 .
Status of Claims
Claims 1-2, 4-6, 8-12, 14-15, 18-22, and 24-26 are examined herein.
Priority
Claim 1 newly recites boron strips. The earliest appearance of this subject matter in the lineage of this application is in parent 12/850,633 (“boron discs” 7). Therefore, this application is treated with a priority date of 08/05/2010.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the confining wall including a plurality of individual electron emitters each comprising an individual boron-containing material strip that is attached to the confining wall with spacing from another of the plurality of individual electron emitters (claim 1) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered. The elected embodiment is Figure 5a-5d. If the claim is going to recite boron strips, then the boron strips must be shown and labeled in one or more of these elected Figures.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Response to Amendments
Applicant’s amendments have required an updated prior art search; the prior art rejections have been updated with new art citing the newly recited boron strips.
This application is on its fourth RCE. Examiner believes the most efficient path forward for Applicants and the Office is to proceed to PTAB. Examiner has reviewed past amendments and arguments and finds no serious progress being made towards allowance.
Response to Arguments
Applicant’s arguments filed 03/19/2026 have been fully considered but are not persuasive.
As an initial matter, Examiner notes that Applicant cites Figures 1 and 2 in their arguments; however, these Figures were not elected following the restriction/election requirement. The elected Figures are Figures 5a-d.
Regarding the Muir paper,1 Applicant’s submission is noted, but Applicant has included no discussion of the relevance of this paper in their accompanying Remarks. Specifically, Applicant provides no specific arguments or explanations of the relevance of the article with respect to the claimed invention. Applicant acknowledges that this article is “unpublished commentary,”2 and Examiner can find no evidence that this report has been published anywhere, let alone in a reputable scientific journal. Thus, this paper cannot be presumed by Examiner to be representative of a scientific consensus on the claimed invention. Accordingly, this submission is unpersuasive in overcoming the pending rejections.
Regarding the Wong paper3, Applicant’s submission is noted, but Applicant has included no discussion of the relevance of this paper in their accompanying Remarks. Further, this article was authored by Applicants themselves. An article by the Applicant does not counter what contemporary knowledge, accepted by the mainstream scientific community, would otherwise suggest, and it further does not establish that a person having ordinary skill in the art would consider Applicant’s asserted utility credible.
Applicant argues that the instant invention is not cold fusion. The method of the instant invention operates at low temperatures: “Fusion reactions described herein may be characterized as ‘warm fusion’ e.g. where fusion occurs in the temperature range of 1000K to 3000K” (Specification at [83]). As detailed in the below objections to the Specification section, the minimum temperature required for nuclear fusion is between 10,000,000 and 100,000,000 Kelvin. Therefore, Applicant’s invention fits squarely into the field of low-temperature nuclear reactions (LENR), or cold fusion, an inoperable invention under 35 USC § 1014. Accordingly, this argument is unpersuasive, and the 101 rejections are maintained.
Regarding the 112(a) rejections, a deficiency under 35 U.S.C. 101 also creates a deficiency under 35 U.S.C. 112, first paragraph. See In re Brana, 51 F.3d 1560, 34 USPQ2d 1436 (Fed. Cir. 1995). Citing In re Brana, the Federal Circuit noted, “Obviously, if a claimed invention does not have utility, the specification cannot enable one to use it.” Accordingly, the 112(a) rejections are maintained.
Applicant argues that the claims themselves do not explicitly recite cold fusion. The second-to-last clause of claim 1 recites nuclear transmutation (“producing, by the repeated collisions, an interaction between the neutrals and the second reactant that produces a product having a nuclear mass that is different from a nuclear mass of any of the nuclei of the neutrals and the second reactant”), and the only disclosed mechanism for said nuclear transmutation is cold fusion: see the Specification at [37]. Accordingly, because the claims recite nuclear transmutation, and the Specification explains this occurs via cold fusion, then the claims require cold fusion for the claimed method to be performed.
Response to the 101/112(a) argument that the claims do not recite a production of energy:
Claim 1 recites that the repeated collisions produce an interaction between the neutrals and the second reactant that produces a product having a different nuclear mass (second-to-last-clause), i.e., causing a nuclear fusion reaction. The Specification explicitly states that part of the disclosed utility for this claimed phenomenon is net energy production: “…a reaction between two or more nuclei in a manner that produces more energy than is input to the reactor,” [77]; “[A] reactor used to produce electricity,” [12] and “the resulting reaction can breakeven and result in Q > 1,” [80]. Therefore, the argument that the claim itself does not re-state that the utility is “energy production” is not found persuasive.
Applicant cites Specification [300] as listing other utilities besides net energy production, specifically the advantages of the claimed method that can be scaled to “retrofit a fossil fuel power plant… a coal power plant may be retrofitted by replacing a coal-fired boiler with a fusion boiler… a fission power plant may be retrofitted by replacing the control rods and uranium fuel with a fusion reactor,” [298] used for large operations such as “a heating interface for industrial processes such as fiberglass manufacture,” [300] for “automobiles, planes trains, and boats,” [301], and “a reactor is used as a source of helium where helium is produced as a result of a fusion reaction,” [300]. Clearly, Applicant’s disclosed utility is large-scale nuclear energy production from nuclear reactors. However, because cold fusion does not work, then it cannot create energy and cannot be used for Applicant’s other listed utilities.
Response to the Electron Catalyzed Fusion paper:
Applicant argues in support of the instant application in the form of the paper Electron Catalyzed Fusion. Examiner notes that this paper was not published in any online peer-reviewed journal. This paper is only published at arxiv.org, whose homepage states that “Materials on this site are not peer-reviewed by arXiv.” The arxiv.org site is an open access or pay-to-publish model which Gills5 states “opened the doors to scam artists and mediocrity,” page 3. The open access publishing journals “accept all submissions and overstate the rigor of their peer-review process,” page 2 and “range from mediocre to outright frauds, and researchers are advised to stay away from them,” page 3.
As such, it is not by coincidence the ECF paper was only published at arXiv. This paper is directed toward subject matter that lies outside the realm of established science. As evidenced in the paper of reference also authored by Applicant6, “electron catalyzed fusion” is a term coined by the Applicant to describe their method: “We have named this process of lowering the Coulomb barrier as ‘Electron Catalyzed Fusion’,” page 2. This paper describing Applicant’s “electron catalyzed fusion” cannot therefore be accepted as evidence that Applicant’s underlying theory of Coulomb barrier lowering is a technology recognized by mainstream scientists.
Response to the CR-39 report:
Applicant argues that the CR-39 report provides supporting experimental results of Applicant’s fusion process. Again, Examiner can find no evidence that this paper has been published in any reputable journal. Accordingly, this report cannot be used to support Applicant’s assertion that the disclosed fusion process is accepted by mainstream scientists.
If Applicant has truly achieved the claimed breakthrough in nuclear fusion research after an admitted 70+ years of failed attempts, where are all the supporting papers published by scientists in the nuclear fusion community? If Applicant had truly achieved such an astonishing feat, the global scientific community would be buzzing with support, criticism, analysis, and attempts to repeat the experiment.
Arguments per the 103 Rejections:
Applicant argues that Gow does not teach the claimed nuclear fusion because “the term ‘fusion’ does not appear anywhere in Gow.” Gow repeatedly discloses nuclear fusion, e.g. “initiating thermonuclear reactions,” col. 1, ll. 25-26. Applicant will appreciate that thermonuclear reactions are nuclear fusion reactions7. Accordingly, this argument is unpersuasive. Applicant argues that Gow does not teach suppressing radiation losses due to bremsstrahlung. In response, Examiner notes that the suppressing of radiation losses is clearly a desired result that Applicant hopes will follow said plasma generation. Radiation suppression, as claimed, as not an actively performable step and therefore does not serve to limit the claimed method. Accordingly, since Gow teaches the preceding steps that Applicant believes will lead to radiation suppression, then if Applicant’s steps produce this desired result, so allegedly will Gow’s. Accordingly, this argument is unpersuasive.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-2, 4-6, 8-12, 14-15, 18-22, and 24-26 are rejected under 35 U.S.C. 101 because the claimed invention is not supported by a well-established utility or a substantial and credible asserted utility.
In Brenner v. Manson, the Supreme Court stated that “[t]he basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point—where specific benefit exists in currently available form—the is insufficient justification for permitting an applicant to engross what may prove to be a broad field.” 383 U.S. 519, 534-35 (1966). The Manual of Patent Examining Procedure (MPEP) accordingly explains that the purpose of the utility requirement is “to limit patent protection to inventions that possess a certain level of ‘real world’ value, as opposed to subject matter that represents nothing more than an idea or concept, or is simply a starting point for future investigation or research.” MPEP § 2103, A., I.
Thus USPTO has the initial burden of setting forth a reason to doubt an Appellant's presumptively correct assertion of utility. In re Swartz, 232 F.3d 862, 864 (Fed. Cir. 2000). “The PTO may establish a reason to doubt an invention's asserted utility when the written description ‘suggest[s] an inherently unbelievable undertaking or involve[s] implausible scientific principles.”’ In re Cortright, 165 F.3d 1353, 1357 (Fed. Cir. 1999) (quoting In re Brana, 51 F.3d 1560, 1566 (Fed. Cir. 1995)).
Here, the claims are directed to an approach to nuclear fusion which Applicants identify as enabled from filling an electrode chamber with hydrogen and applying a voltage. Claim 1, for example, recites:
A method … producing, by the repeated collisions, an interaction between the neutrals and the second reactant that produces a product having a nuclear mass that is different.
It is clear from the disclosure that the “interaction” is a nuclear fusion reaction (see [37]).
Applicant details how all previous attempts at creating and maintaining said nuclear fusion reactions have failed:
“[A]fter billions of dollars and decades of research, to most, the idea of a sustainable fusion source for clean energy has become a pipe dream,” [3]
“The commonly held belief in the art is that another 25-50 years of research remain before fusion is viable for power generation,” [3]
“At the time of this filing, the most successful ICF program is the National Ignition Facility (NIF) which was constructed at the cost of nearly 3.5 billion dollars and completed in 2009. NIF reached a milestone by causing a fuel pellet to give off more energy than was applied to it, but as of 2015, the NIF experiments were only able to reach about 1/3 of the energy levels needed for ignition,” [5]
“Most of the research in magnetic confinement is based on the tokamak .... it was hoped that TFTR would finally achieve fusion energy, but it never achieved this goal and was shut down in 1997.... Current efforts in magnetically confined fusion are focused on the International Thermonuclear Experimental Reactor (ITER), a Tokamak reactor that began construction in 2013... The current estimate for the cost of the project is over $50 billion, and it is likely the costs will continue to rise,” [7]
“Due to market realities, and the inherent limitations of the tokamak design for fusion power, many analysts doubt that fusion reactors such as ITER will become commercially viable,” [7]
“[O]ne researcher in the field considered that while “not quite impossible [it is] still unlikely that rotating plasmas alone would lead to the realization of a self-sustained fusion reactor,” [9]
“Because the conventional thinking holds that high temperatures and a strongly-ionized plasma, absent of the presence of a significant presence of neutrals, are required, it was further believed that inexpensive physical containment of the reaction was impossible,” [16]
“‘The simplest and most obvious method with which to provide confinement of a plasma is by a direct-contact with material walls, but is impossible for two fundamental reasons: the wall would cool the plasma and most wall materials would melt. We recall that the fusion plasma here requires a temperature of 108 K while metals generally melt at a temperature below 5000 K.’ (“Principles of Fusion Energy,” A. A. Harms et al.). The need for extremely high temperatures is premised on the belief that only highly energized ions with charge can fuse, and that the coulombic repulsion force limits the fusion events,” [17]
“While muon-catalyzed fusion received some attention, efforts to make a muon- catalyzed fusion source have not been successful,” [20]
“Despite efforts in ICF, magnetic confinement fusion, and various methods of reducing the Coulombic barrier, there is no currently commercially feasible fusion reaction design that exists,” [25]
However, despite the failure of all others hitherto, Applicant claims to have overcome the tremendous barriers known in the art and invented a method for achieving fusion yielding a positive energy output without meeting the accepted and established conditions necessary for fusion to occur, known as the Lawson criterion8. For one, fusion on Earth requires temperatures several orders magnitude greater than 15 million degrees Celsius temperature at the sun’s core9. Mainstream nuclear science reckons that the requisite temperature for fusion on Earth is 100 million degrees Celsius or more. Instead, the instant invention abandons the Lawson criterion, operating differently: “The repeated collisions … increase the probability of a fusion reaction … The repetition … addresses the concerns that led to Lawson’s criterion for characterizing prior approaches to fusion reactions,” Specification at [105].
Applicants acknowledge that no one has yet created a commercially viable fusion reactor, as cited above, but Applicants envisage that the instant invention solves this problem. The asserted specific utility is a nuclear fusion method that finally achieves break-even fusion for practical purposes such as retrofitting a fossil fuel plant:
“…a reaction between two or more nuclei in a manner that produces more energy than is input to the reactor” [77]
“[A] reactor used to produce electricity should exhibit a Q value significantly greater than 1 to be commercially viable” [12]
“When accounting for the energy input to the reactor, the resulting reaction can breakeven and result in Q > 1” [80]
“the use of fusion reactors may make feasible and/or practical energy intensive applications that were not feasible or practical with conventional power generation methods” [297]
the “energy densities of fusion reactants used for reactors described herein are significantly higher than fuels required by a fission reaction or a chemical reaction to produce the same amount of energy” [301]
“retrofit a fossil fuel power plant… a coal power plant may be retrofitted by replacing a coal-fired boiler with a fusion boiler… a fission power plant may be retrofitted by replacing the control rods and uranium fuel with a fusion reactor” [298]; and
large operations such as “a heating interface for industrial processes such as fiberglass manufacture” [300] and for “automobiles, planes trains, and boats” [301].
The Specification estimates theoretical outcomes based on the invention but does not provide any experimental evidence of a release of energy greater than the amount of energy input, i.e., net positive energy or “break-even” fusion, such as for producing useful electricity as asserted. Nor is there a disclosure of the specific mechanisms, operational parameters, etc. that an ordinarily skilled artisan would recognize as capable of sustaining a fusion reaction on the scale needed to currently achieve the benefits noted above. The Specification at [80] simply assumes the break-even fusion condition is fulfilled: “When accounting for the energy input to the reactor, the resulting reaction can breakeven and result in Q > 1,.” The lack of any experimental results, or of any supporting evidence from a third party, also weigh in favor of finding that the claimed subject matter, if even operative, lacks the real-world value required by 35 U.S.C. 101.
Current publications and documents evidence a consensus in the scientific community that there is yet to be a fusion technique—thermonuclear or cold—capable producing an energy gain sufficient for practical applications. As noted Dylla10, as recently as 2020, the largest nuclear fusion project in the world—the International Thermonuclear Experimental Reactor (ITER)—aspired to achieve a successful fusion demonstration “for several minutes duration” by 2026 at the absolute earliest. This is with a projected cost of “greater than $10 billion.”
Further according to the official ITER11 webpage:
“The world record for fusion power in a magnetic confinement fusion device is held by the European tokamak JET. In 1997, JET produced 16 MW of fusion power from a total input heating power of 24 MW (Q=0.67). ITER is designed to yield in its plasma a ten-fold return on power (Q=10), or 500 MW of fusion power from 50 MW of input heating power. ITER will not convert the heating power it produces as electricity, but — as the first of all magnetic confinement fusion experiments in history to produce net energy gain across the plasma (crossing the threshold of Q≥1) — it will prepare the way for the machines that can.”
There currently exist no nuclear fusion reactors, thermonuclear (hot) or cold, capable of producing useful energy gain for practical applications. The National Ignition Facility (NIF) is the largest operational fusion system in the US to date that operates at extreme temperatures. In December 2022, the NIF reportedly achieved a “nuclear fusion breakthrough,” producing 3.15 MJ of fusion energy from 2.05 MJ of laser light. This was the first ever demonstration in the world of a target producing more energy than was delivered to the target. However, the laser system12 itself required 322 MJ of energy to create these fusion reactions, multiple orders of magnitude greater than the energy produced. Thus, while an achievement in fusion, the experiment is far from a demonstration of practical energy production—as stated by experts in the fusion community13,14.
When the most advanced thermonuclear fusion reactors in the world have yet to create more energy than they consume (“net” energy gain), Applicant’s claims (a) to already be in possession of a nuclear fusion method that operates without the extreme temperatures needed for traditional fusion, and (b) that such a method achieves a net energy gain would be questionable to a person of ordinary skill in the art.
To accomplish this feat, Applicant’s method relies on simply supplying electrical and magnetic energy to a neutral (hydrogen, [48]) gas in a chamber with electrodes and a boron target strip, claim 1.
However, as is known by those having ordinary skill in the art, overcoming the Coulomb barrier to achieve critical ignition for nuclear fusion is only known to occur at extremely high kinetic energies, i.e., extremely high temperatures, such as those present on the sun. Georgia State University15 explains:
“The temperatures required to overcome the coulomb barrier for fusion to occur are so high as to require extraordinary means for their achievement. Such thermally initiated reactions are commonly called thermonuclear fusion. With particle energies in the range of 1-10keV, the temperatures are in the range of 107–108 K.”
Applicants have failed to sufficiently disclose how the claimed method for taking advantage of the hydrogen gas is capable of producing or sustaining a fusion reaction. The disclosure provides no mechanism for achieving and maintaining the temperatures of hundreds of millions of degrees Celsius/Kelvin known to be required to achieve nuclear fusion ignition.
To the contrary, the method of the instant invention operates at lower temperatures. The method relies on the emission of electrons from a boron target strip in order to work (“electron emitters each comprising an individual boron-containing material strip,” claim 1), and the preferred form of boron is “boron nitride” or “lanthanum hexaboride,” Specification at [176], which have melting points, respectively, of 3246 K16 and 2480 K17. In order for Applicant’s invention to work, the temperature of the system must be kept well under the melting point of the target, as acknowledged by Applicant in [17]: “[The] wall would cool the plasma and most wall materials would melt … the fusion plasma here requires a temperature of ~108 K while metals generally melt at a temperature below 5000 K.”
As cited above in the quotation from Georgia State University, the minimum temperature required for nuclear fusion ignition is between 10,000,000 and 100,000,000 Kelvin. Applicant’s temperatures are below 2480 – 3246 Kelvin. Therefore, Applicant’s invention appears to fit squarely in the field of low-temperature nuclear reactions (LENR), or cold fusion.
In summary, Applicant’s invention tries to “have it both ways,” citing net-positive “clean” energy for solving the fusion industry’s woes (e.g., see Spec. at [3] and [297-301]) but without any of the consequences (e.g., the necessity of confining an extremely hot nuclear reaction without melting the apparatus).
Applicant’s cold nuclear fusion allegedly occurs due to a reliance on “repeated collisions” for “aligning the quantum mechanical spins of reactant nuclei,” as explained in the Specification at [97] and [105]. While the disclosure discusses the necessity of this “repeated collisions” for “aligning the quantum mechanical spins of reactant nuclei,” no explanation is provided as to how the skilled artisan may practically manipulate or take advantage of these effects. Moreover, a review of the scientific literature finds no support whatsoever for such effects having the alleged intended result of cold nuclear fusion, let alone simply from energizing a hydrogen gas in an electrode chamber with boron strips present, as recited in claim 1.
For the present invention, which is directed to a way of attempting nuclear fusion at odds with established scientific principles, evidence and acceptance by the scientific community is of crucial importance because the PTO may meet its burden to establish a prima facie case of lack of utility where the written description suggests an unbelievable undertaking or implausible principles. See In re Cortright, 165 F.3d. at 1357.
The claimed invention for generating and maintaining an exothermic cold fusion reaction sufficient to be used as a viable energy source via the formation and manipulation of “repeated collisions between one or both of the ions and the neutrals with a second reactant comprising boron” (claim 1) is too undeveloped to be considered to have a body of existing knowledge associated with it, much less reproducibility of results. See In re Swartz, 232 F.3d at 864 (“Here the PTO provided several references showing that results in the area of cold fusion were irreproducible. Thus the PTO provided substantial evidence that those skilled in the art would ‘reasonably doubt’ the asserted utility and operability of cold fusion”). Reproducibility must go beyond one’s own laboratory. One must produce a set of instructions—a recipe—that would enable a skilled artisan to produce and use the invention. If reproducibility occurs only in one’s own laboratory, errors (such as systematic errors) could reasonably be suspected. Applicant’s disclosure is insufficient as to how the embodiments described therein are based upon valid and reproducible methodology.
The Examiner cannot find, and Applicant has not supplied, any reputable and peer-reviewed papers in which the mainstream scientific community (i.e., outside of Applicant’s own laboratory or simulations) has replicated or built upon Applicant’s purportedly revolutionary discovery. Therefore, the Examiner must conclude that the claimed invention has not been independently reproduced.
In view of the above, it is more likely than not that an ordinarily skilled artisan would doubt the effective obtention of a fusion reaction, i.e., causing and capability to create useful electricity as claimed, as well the benefits asserted by Applicants as of the effective date of the claims. Rather, the preponderance of evidence supports a finding that as of the effective date, the claimed method was at most at starting point for future investigation or research. See In re Swartz, 232 F.3d at 864, In re Cortright, 165 F.3d at 1357.
Claims 1-2, 4-6, 8-12, 14-15, 18-22, and 24-26 are further rejected under 35 U.S.C. 101 because the disclosed invention is inoperative and therefore lacks patentable utility for the reasons provided in the above 101 rejection, which are incorporated herein. The production of commercial electricity via a net-positive cold nuclear fusion is considered as being Applicant's specific, asserted utility (Specification at [297-301]). Applicant’s invention is disclosed as operating at energy ranges many orders of magnitude below what the scientific community considers conducive to nuclear fusion. The ordinary skilled artisan would find it more likely than not that Applicant’s invention was neither (a) net-energy-producing hot fusion, nor (b) cold fusion because, as detailed above: regarding (a), net-energy-producing hot nuclear fusion has never yet been observed; and regarding (b), cold fusion is considered unworkable by the scientific community. The Examiner has provided a preponderance of evidence as to why the asserted operation and utility of Applicant's invention is inconsistent with known scientific principles, making it speculative at best as to whether attributes of the invention necessary to impart the asserted utility are actually present in the invention. See In re Sichert, 566 F.2d 1154, 196 USPQ 209 (CCPA 1977). Accordingly, the invention as disclosed is deemed inoperable, i.e., it does not operate to produce the results claimed by the Applicant.
As set forth in MPEP § 2107.01(IV), a deficiency under 35 U.S.C. 101 also creates a deficiency under 35 U.S.C. 112, first paragraph. See In re Brana, 51 F.3d 1560, 34 USPQ2d 1436 (Fed. Cir. 1995). Citing In re Brana, the Federal Circuit noted,
“Obviously, if a claimed invention does not have utility, the Specification cannot enable one to use it.”
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1-2, 4-6, 8-12, 14-15, 18-22, and 24-26 are rejected under 35 U.S.C. 112(a). Specifically, because the claimed invention is not supported by a well-established utility or a substantial and credible asserted utility for the same reasons set forth in the rejections under 35 U.S.C. 101 (which are incorporated herein), one skilled in the art clearly would not know how to use the claimed invention.
Claims 1-2, 4-6, 8-12, 14-15, 18-22, and 24-26 are further rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claims contains subject matter which was not described in the Specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor at the time the application was filed, had possession of the claimed invention. Specifically, a person skilled in the art at the time the application was filed would not have recognized that the inventor was in possession of the invention as claimed in view of the disclosure for the reasons provided in the above 101 rejections, which are incorporated herein.
Claims 1-2, 4-6, 8-12, 14-15, 18-22, and 24-26 are further rejected under 35 U.S.C. 112(a) as failing to comply with the enablement requirement. The claims contains subject matter which was not described in the Specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
To be enabling, the disclosure, as filed, must be sufficiently complete to enable a person of ordinary skill in the art to make and a use the full scope of the claimed invention without undue experimentation. It is the Examiner’s position that an undue amount of experimentation would be required to produce an operative embodiment of the claimed invention.
Applicant asserts they have produced an operative method for achieving controlled nuclear fusion for useful electricity production (claim 1 and Specification at, e.g., [297-301]) in a low-temperature environment ([83]).
To determine whether a given claim is supported in sufficient detail (by combining the information provided in the disclosure with information known in the art) such that any person skilled in the art could make and use the invention as of the filing date of the application without undue experimentation, at least the following factors should be included:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
This standard is applied in accordance with the U.S. Federal Court of Appeals decision In re Wands, 858 F.2d at 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988). See also United States v. Telectronics Inc., 857 F.2d 778, 785, 8 USPQ2d 1217, 1223 (Fed. Cir. 1988), cert. denied, 490 U.S. 1046 (1989).
Reviewing the aforementioned Wands factors, the evidence weighs in favor of a finding that undue experimentation would be necessary to make and use the claimed invention, and therefore, a determination that the disclosure fails to satisfy the enablement requirement. Specifically:
(A) The breadth of the claims: Applicant’s claims (e.g., see claim 1) are very broad: “repeated collisions” in an electrode chamber has the desired result of an “interaction” defined in the disclosure to be the world’s first-ever net-positive nuclear fusion reaction.
(B) The nature of the invention: The nature of the invention, i.e., the subject matter to which the claimed invention pertains, revolves around the viability of cold (low-energy) nuclear fusion as a substantial source of marketable commercial energy; as currently disclosed by Applicant, cold fusion involves a questionable departure from the accepted and well-tested theories that comprise known nuclear and plasma physics, chemistry, and electromagnetism. As such, the subject matter to which the invention pertains lies outside the realm of working science.
(C) The state of the prior art: The effects claimed by Applicant have not been verified by the existing body of scientific work and are, in fact, incompatible with it.
(D) The level of one of ordinary skill: The level of ordinary skill in the art is a skilled artisan who can create and operate nuclear fusion reactors using conventional technology that do not produce net positive energy.
(E) The level of predictability in the art: Low-temperature nuclear fusion experiments are predictably unable to produce expected, reproducible, or meaningful empirical data.
(F) The amount of direction provided by the inventor: Applicant’s disclosure does not provide the necessary step-by-step guide to actually achieve the claimed end goal of self-sustained/breakeven nuclear fusion. The disclosure simply asserts that the invention operates as alleged due to “repeated collisions” for “aligning the quantum mechanical spins of reactant nuclei,” as explained in the Specification at [97] and [105].
(G) The existence of working examples: The Specification vaguely describes possibilities (e.g., “… one possible explanation …,” [98]), but it does not provide any experimental evidence of a release of energy greater than the amount of energy input, i.e., net positive energy such as for producing useful electricity as asserted. Nor is there a disclosure of the specific mechanisms, operational parameters, etc. that an ordinarily skilled artisan would recognize as capable of sustaining a fusion. Nor is there evidence that the provided example has been reliably reproduced or that it enjoys mainstream support.
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure: The quantity of experimentation needed is unreasonable because the practical guidance provided is insufficient to enable one to build or operate a working prototype of the invention.
Any claim not specifically addressed above that depends on a rejected claim is accordingly also rejected under 35 U.S.C. 112(a).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code 103 not included in this action can be found in a prior Office action.
Claim 1 recites statements that are essentially statements of intended or desired use. These include:
“a plurality of individual electron emitters … emit electrons of the electron-rich region,”
“that suppresses radiation losses due to bremsstrahlung based on the plasma comprising a higher proportion of the neutrals to the ions,”
“(c) by interaction of the electric field and the magnetic field, produce a Lorentz force that induces azimuthal rotation of the ions around the longitudinal axis,”
“the azimuthal rotation of the ions imparting, through ion-neutral coupling, azimuthal rotation to neutrals of the first reactant,”
“promoting repeated collisions between one or both of the ions and the neutrals with a second reactant comprising boron 11,” and “producing, by the repeated collisions, an interaction between the neutrals and the second reactant that produces a product having a nuclear mass that is different from a nuclear mass of any of the nuclei of the neutrals and the second reactant.”
These clauses do not serve to patentably distinguish the claimed method over that of the applied reference(s), as long as the method of the cited reference(s) is capable of achieving the intended result. In other words, these claims are being interpreted under MPEP 2111.04, in which the whereby- and such that-type clauses including “interactions” that “produce” desired results are not given patentable weight because they simply suggest intended results that may allegedly follow naturally from the claimed features. See MPEP § 2111.04.
The language being treated as intended result-type language in accordance with MPEP 2111.04 is shown inside brackets […].
Claims 1, 2, 4, 8, 12, 14, 15, 18, 19, 20, 21, 22, 24, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Gow (US 3,014,857) in view of Liard18 (Transport in low-temperature magnetized plasma with significant ionization rate) and Rostoker (US 2006/0254520).
Regarding claim 1, Gow teaches a method comprising:
introducing a fluid to a confinement region through an inlet to the confinement region, the fluid containing a first reactant (“A gas such as deuterium from the source 26 is fed into the chamber 11,” col. 2, l. 71–col. 3, l. 1);
applying an electric potential difference between a first electrode (12) and a second electrode (23) to produce an electrical current from the first electrode toward the second electrode (col. 2, ll. 58-60), producing an electron-rich region disposed within the confinement region and proximate the second electrode (col. 3, ll. 43-47), wherein:
the first electrode (12) has a substantially cylindrical inner surface that has a longitudinal axis (see Fig. 1) and forms at least a portion of a confining wall (11) that at least partially encloses the confinement region, and one or more portions of the confining wall including one or more electron emitters (“stainless steel,” col. 2, l. 3, which is capable of emitting electrons19), attached to or embedded therewith the one or more portions of the confining wall including [the one or more electron emitters being spaced from each other and configured to, during operation, emit electrons of the electron-rich region] (stainless steel is capable of emitting electrons, as cited above; moreover, the different elements/compounds/atoms within the steel are spaced apart from each other)
the second electrode (23) is located within a region interior to the first electrode (see Fig. 1) and separated from the first electrode by at least the confinement region (see Fig. 1); and
at least one magnet (16, 17,18) is configured to provide a magnetic field through the confinement region, at least a portion of the magnetic field in the confinement region being substantially parallel to the longitudinal axis (see Fig. 2); and
operating a control system (e.g., see operation and adjustments performed in col. 2, ll. 57-70) comprising at least one of a voltage source and a current source (51, 52), the control system bring configured to: (a) control a potential of an electric field substantially orthogonal to the longitudinal axis, the potential being between the first electrode (12) and the second electrode (23), and the potential being sufficient to produce an electrical current from the first electrode (12) toward the second electrode (23) (e.g., col. 3, ll. 37-42); (b) generate, from the first reactant, an ionized plasma of ions and neutrals (col. 3, ll. 37-52), [that suppresses radiation losses due to bremsstrahlung based on the plasma comprising a higher proportion of the neutrals to the ions] (if Applicant’s generation can suppress radiation losses due to bremsstrahlung, then so can Gow’s); and [(c) by interaction of the electric field and the magnetic field, produce a Lorentz force that induces azimuthal rotation of the ions around the longitudinal axis] (e.g., col. 3, ll. 37-43, if Applicant’s electric field and magnetic field interaction is capable of producing a Lorentz force that achieves the desired result of azimuthal rotation of ions, then so is Gow’s), [the azimuthal rotation of the ions imparting, through ion-neutral coupling, azimuthal rotation to neutrals of the first reactant] (e.g., col. 3, ll. 37-57, if Applicant’s azimuthal rotation is capable of imparting azimuthal rotation to neutrals of the first reactant, then so is Gow’s), and [promoting repeated collisions between one or both of the ions and the neutrals with a second reactant] (e.g., col. 4, ll. 11-17, if Applicant’s collisions can be promoted then so can Gow’s);
[producing, by the repeated collisions, an interaction between the neutrals and the second reactant that produces a product having a nuclear mass that is different from a nuclear mass of any of the nuclei of the neutrals and the second reactant] (“thermonuclear reactions,” page 8, l. 25; also, if Applicant’s method is capable of producing the desired result of a product from nuclear fusion, then so is Gow’s).
Gow does not explicitly disclose the claimed mole fraction, i.e., the weak ionization.
Liard does. Liard is in the same art area of manipulating plasmas and teaches a mole fraction of the ions to the neutrals in the weakly ionized plasma that is in the range of about 0.0001 % to about 1 % (“the ionization fraction usually remains sufficiently small (10-4),” § Introduction and background, first page).
It would have been obvious to one of ordinary skill in the art before the effective filling of the claimed invention to operate the method of Gow to achieve the mole fraction of Liard “so that the neutral density stays uniform in the reactor,” § Introduction and background, first page). Moreover, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have optimized the degree of ionization to be within the approximate claimed range, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Gow and Liard do not explicitly disclose that the electron emitter may be boron.
Rostoker does. Rostoker is in the same art area of nuclear reactions and teaches a confining wall (“first wall,” ¶ 244) including a plurality of individual electron emitters (plates 870 in Fig. 31) each comprising an individual boron-containing material strip (“870 … is preferably a thin-film structure made of 0.02-cm thick boron-carbide,” ¶ 244) that is attached to the confining wall (“The TEC 870 is located at the first wall,” ¶ 244) with spacing from another of the plurality of individual electron emitters (e.g., the leftmost block 870 is spaced apart from the middle block 870, Fig. 31), the plurality of individual electron emitters configured to, during operation, emit electrons of the electron rich-region (per the Specification at [86], Applicant states that boron emits electrons). The skilled artisan would have been motivated to use the boron plates at the confining wall of Rostoker in the method of above-combined Gow with Liard in order to, as explained by Rostoker (¶ 244), recover “energy from the electromagnetic emissions of the fusion core.”
Regarding claim 2, the above-described combination teaches all the elements of the parent claim. Gow further discloses wherein the second electrode (23) has a diameter of at most about 0.5 inches (“central electrode, outer diameter…. 5/8 inches,” col. 3, l. 22).
Regarding claim 4, the above-described combination teaches all the elements of the parent claim, and Gow additionally teaches wherein the second electrode comprises a metallic material (“this electrode may be formed of a metal such as aluminum,” col. 2, ll. 19-20) but does not explicitly suggest one of the claimed metals. The skilled artisan would have been motivated to utilize tungsten, copper, tantalum, lanthanum hexaboride, or carbon because it would have been an obvious matter of design choice prior to the effective filing date of the invention, since it has been held to be within the general skill of one skilled in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. Moreover, Examiner notes that tungsten was known to be “suitable” for plasma applications due to its extremely high melting point.
Regarding claim 8, the above-described combination teaches all the elements of the parent claim. Gow further discloses wherein the at least one magnet comprises an electromagnet (17/18 and 51/52).
Regarding claim 12, the above-described combination teaches all the elements of the parent claim. Gow further discloses wherein the confining wall (11) comprises a layered structure (12,22, 32, 34) in which at least one of the layers comprises the first electrode (12).
Regarding claim 14, the above-described combination teaches all the elements of the parent claim. Gow further discloses wherein the neutrals include deuterium (col. 2, l. 73).
Regarding claim 15, the above-described combination teaches all the elements of the parent claim. Gow further discloses, wherein, in the confinement region proximate the second electrode, the neutrals have a concentration of 3 x 1013 (col. 4, l. 25). While Gow does not explicitly disclose the neutrals have a concentration of at least about 1020/cm3, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have obtained a neutral concentration of at least about 1020/cm3. It has been held that discovering an optimum value of a result-effective variable involves only routine skill in the art. The skilled artisan would have been well aware that optimizing the concentration of neutrals would have affected the degree of ionization.
Regarding claims 18–21, the above-described combination teaches all the elements of the parent claim. Gow further discloses producing an electron-rich region in the confinement region proximate the second electrode, as noted in the rejection for claim 1.
Gow does not explicitly state that the excess of electrons over positively charged particles is at least about 106/cm3, that the region extends from the second electrode into the confinement region by a distance of between about 50 nanometers and about 50 micrometers, that the region includes an electric field strength of at least about 106 V/m or the electron-rich region includes neutrals with an energy on average of between 0.1 eV and 2 eV.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have operated the method of Gow to achieve parameters within these ranges, since it has been held that discovering an optimum value of a result-effective variable involves only routine skill in the art. The skilled artisan would have been well aware that optimizing the density of electrons, the length of the electron-rich region, the electric field strength, and the energy of neutrals would have affected the amount of alleged energy produced. Moreover, the skilled artisan would not have been surprised by the outcomes of increasing and decreasing each of these values.
Regarding claim 22, the above-described combination teaches all the elements of the parent claim. Gow further discloses cooling the second electrode by passing a fluid through the second electrode (col. 2, ll. 37-43).
Regarding claim 24, the above-described combination teaches all the elements of the parent claim. Gow further discloses wherein the neutrals are introduced to the confinement region at a pressure less than about 20 torr (a vacuum would have a pressure less than about 20 torr, col. 2, ll. 6-7 and col. 3, ll. 1-3).
Regarding claim 25, the above-described combination teaches all the elements of the parent claim. Gow further discloses wherein applying an electric potential difference between the first electrode and the second electrode is performed using a constant current (col. 3, ll. 4-15).
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Gow and Liard with Rostoker, as combined above, further in view of Dardik (US 2007/0280398).
Regarding claims 10 and 11, the above-described combination teaches all the elements of the parent claim, and Rostoker further teaches the second electrode (inner electrode at core 835) includes an electron emitting material/electron emitters comprising boron (Rostoker, “boron,” ¶ 241) but does not explicitly teach a boron coating.
Dardik does. Dardik is in the same art area of alleged low-energy nuclear reactions and teaches coating an electrode within an alleged fusion system with boron (i.e., an electron emitting material): “Modifying substances, such as…boron…may be grown in and/or on electrodes for enhancing nuclear reactions,” ¶ 16. The skilled artisan would have been motivated to coat the first electrode/confining wall of Gow with the boron of Dardik because, according to Dardik (¶ 16), this “may trap and stimulate various forms of hydrogen for useful energy producing reactions.”
Claims 5, 6, 8, 9, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Gow and Liard with Rostoker, as combined above, further in view of Binderbauer (US 2006/0198485).
Regarding claims 5, 6, 8, and 9, the above-described combination teaches all the elements of the parent claim. Gow further discloses wherein the at least one magnet (17, 18) comprises at least one magnet having opposite magnetic poles (implicit) offset from one another a distance parallel to the longitudinal axis (see Figs. 1, 2), and wherein the at least one magnet comprises two magnets (17, 18) separated from one another by at least the confinement region and in a direction parallel to the longitudinal axis (see Figs. 1, 2) but does not explicitly state that these are permanent magnets or electromagnets or superconducting magnets.
Binderbauer does. Binderbauer is in the same art area of magnets usable in fusion systems and teaches wherein the magnets can be permanent magnets, electromagnets (¶ 119) or superconducting magnets (¶ 239 or ¶ 242).
It would have been obvious to one of ordinary skill in the art before the effective filling of the claimed invention to modify the Gow-Liard-Rostoker system with the magnet types of Binderbauer in order to, as explained by Binderbauer (¶ 119), neutralize the ion beams with the “appropriate magnetic field” to achieve “an electric self-polarization due to the magnetic field” or to achieve a stable magnetic field that suits the system’s “cryogenic requirements” and its size and weight considerations (¶ 239). Binderbauer teaches that these types of magnets are art-recognized equivalents (e.g., ¶ 119) for their use in the nuclear art and the selection of these known equivalents to produce a magnetic field would be within the level of ordinary skill in the art. The skilled artisan would have been motivated to utilize the permanent magnets or electromagnets or superconducting magnets depending on which was more widely available and/or cheaper, or worked better with the control system in the available laboratory.
Regarding claim 26, the above-described combination teaches all the elements of the parent claim. Gow discloses wherein applying an electric potential difference between the first electrode and the second electrode through a source (e.g., col. 6, ll. 62-66) but does not explicitly disclose a battery or capacitor.
Binderbauer does. Binderbauer is in the same art area of magnets usable in fusion systems and teaches wherein the power source comprises a battery (¶ 241) or a capacitor (¶ 149). It would have been obvious to one of ordinary skill in the art before the effective filling of the claimed invention to modify the Gow-Liard-Rostoker system with the power supply of Binderbauer because such a battery would have been advantageous for the purpose of storing power until it is needed (¶ 241), as is known in the art, or to “provide an independent source of energy” (¶ 231), or even to provide separate storage banks as desired (¶ 149).
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 LILY C GARNER whose telephone number is (571)272-9587. The examiner can normally be reached 9-5 CT.
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Please be aware that, as of October 1, 2025, the PTO has implemented a policy of one interview per round of examination. Additional interviews require managerial approval.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jack Keith can be reached at (571) 272-6878. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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LILY CRABTREE GARNER
Primary Examiner
Art Unit 3646
/LILY C GARNER/ Primary Examiner, Art Unit 3646
1 23-page NPL (“Steady state…”) in the file 09/05/2025.
2 Remarks dated 09/05/2025, line 8 of page 7
3 13-page NPL (“An Approach…”) in the file 09/05/2025.
4 Cold fusion devices have been to the federal circuit and lost twice. In re Swartz, 232 F.3d 862 (Fed. Cir. 2000) and In re Dash, No. 04-1145, 08/439,712 (Fed. Cir. 2004)
5 See the 7-page NPL reference in the file 7/22/2022 Beware! Academics are getting reeled in by scam journals.
6 See the 23-page NPL reference in the file 9/2/2021 Influence of Electromagnetic Fields on Nuclear Processes.
7 Thermonuclear:
An adjective referring to the process in which very high temperatures are used to bring about the fusion of light nuclei, such as those of the hydrogen isotopes deuterium and tritium, with the accompanying liberation of energy. -Nuclear Regulatory Commission glossary, <www.nrc.gov/reading-rm/basic-ref/glossary/thermonuclear>.
8 “Plasmas must meet three conditions for fusion to occur, including reaching sufficient temperature, density, and [confinement] time.” The Science of Fusion Where triple product reigns supreme”, https://usfusionenergy.org/science-fusion (last visited October 27, 2025).
9 Id.
10 How Long is the Fuse on Fusion? Springer Nature Switzerland AG 2020, pages 85–86.
11 What will ITER do? <iter.org/fusion-energy/what-will-iter-do>
12 https://lasers.llnl.gov/science/achieving-fusion-ignition
13 Tollefson, Jeff, and Elizabeth Gibney. "Nuclear-fusion lab achieves ‘ignition’: What does it mean?." Nature 612.7941 (2022): 597-598. <https://www.nature.com/articles/d41586-022-04440-7>.
14 Thomas, William. National Ignition Facility Achieves Long-Sought Fusion Goal. Dec 16 2022. AIP News article. <https://ww2.aip.org/fyi/2022/national-ignition-facility-achieves-long-sought-fusion-goal#>.
15 Temperatures for Fusion, Department of Physics and Astronomy, Georgia State University: <http://hyperphysics.phy-astr.gsu.edu/hbase/NucEne/coubar.html>.
16 wikipedia.org/wiki/Boron_nitride
17 wikipedia.org/wiki/Lanthanum_hexaboride
18 See the 5-page NPL reference in the file 9/2/2021.
19 See the 1-page abstract in the file 08/13/2024 from Walton Low energy, ion-induced electron and ion emission from stainless steel: The effect of oxygen coverage and the implications for discharge modeling: “Absolute yields of electrons and negative ions resulting from positive ions impacting stainless steel have been determined …”
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