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, 4–8, and 14–16 are under examination.
Response to Amendment
Applicant’s amendments overcome some, but not all, of the 112(b) rejections, the remaining ones being maintained and further explained herein.
Applicant’s amendments do not overcome the prior art rejections, which are maintained.
Response to Arguments
Applicant's arguments, see Remarks dated 9/30/2025, have been fully considered but they are not persuasive for the reasons detailed below.
Regarding the 101 rejections for lack of utility, the asserted utility is based on the disclosure. The asserted utility is to a fusion reactor that has “a net positive energy production and makes the fusion reaction commercially viable,” Specification at ¶ 7 at low temperatures, e.g., “1500 to 5000 degrees Celsius,” Specification at ¶ 6. Applicant’s invention is therefore directed to a cold fusion device, an inoperable invention under 35 USC § 1011.
In the 10/24/2025 Interview Summary, Applicants suggested another possible
utility of radioisotope production. Examiner has reviewed the disclosure and found the discussion of radioisotope production (Specification, ¶¶ 365–374) to be limited to conventional knowledge, e.g., Table X listing known uses of radioisotopes for cancer treatment and medical imaging.
Even if the disclosure offered adequate inventive detail of an alternative utility of radioisotope production, Examiner cannot find, and Applicant has not supplied, any peer-reviewed, third-party papers published in a mainstream journal that support radioisotope production via Applicant’s mechanism of Lattice Confinement Fusion (LCF). This was noted in the 10/24/2025 Interview Summary—all disclosed embodiments, regardless of utility, operate under LCF technology. Examiner finds that LCF technology has not been proven to be accepted by mainstream scientists for either the utility of (a) net-positive fusion energy or (b) radioisotope production.
Specifically regarding (a), the most comprehensive resource for LCF appears to be NASA’s website2, which admits that LCF does not produce useable power:
“The current findings open a new path for initiating fusion reactions for further study within the scientific community. However, the reaction rates need to be increased substantially to achieve appreciable power levels, which may be possible utilizing various reaction multiplication methods under consideration,” said Glenn’s Dr. Bruce Steinetz, the NASA project principal investigator.”
Specifically regarding (b), the two papers3 proffered by NASA’s website do not disclose a radioisotope production utility. The second paper at best suggests such a utility might be possible some day: “Process scale up using an energy-efficient LINAC, may lead to a new means of generating or boosting medical and industrial isotope production,” § VI Future Work, page 044610-12.
Accordingly, 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.
Regarding the 35 U.S.C. 102 rejections, Applicant argues (page 21) that Pons does not teach the limitation “hot energetic neutrons at energies of 1 keV or more.” Pons discloses “high energy” neutrons on page 2, l. 45. Examiner cited a third-party textbook L’Annunziata that provides evidence that “high energy” neutrons refers to energies well above 1 keV. Therefore, Pons’ “high energy” neutrons read on the limitation “energies of 1 keV or more.” Accordingly, this argument is unpersuasive.
Applicant states they cannot find Examiner’s citations in Pons. Applicant states that “The Wo [sic] publication thereof has no numbered lines.” Examiner did not cite a WO publication. Examiner cited EP 0463089 B1. Examiner attached a copy of this reference to the 03/31/2025 Non-Final Rejection—it is in the file as foreign reference, 03/31/2025, 43 pages. That copy includes Examiner-provided highlighting so that Applicant can quickly find the cited portions. Therefore, Applicant’s argument that Pons has “no disclosure of liquid deuterium” (top of page 22) is unpersuasive per Examiner’s cited portion of Pons: “A preferred deuterium source is deuterated water,” page 2, ll. 47–48.
Response to Affidavit
The 01/02/2026 Affidavit alleges that the instant invention was “provided high marks for the physics breakthrough in creating deuterium fusion reactions using relatively simple, low cost equipment as compared to other highly complex, expensive fusion reactors.” Applicant cites a 2025 paper by Gillespie and states that it “indicates the likelihood of…fusion,” Affidavit at 4. Gillespie concludes as follows: “[W]e conclude that some other mechanism may be responsible for tritium production in this case, consistent with the Steinetz et al. hypothesis,” Affidavit at 6. Emphases added by Examiner.
All of these points support the Examiner’s conclusion that, as of the effective date, the claimed method was at most at starting point for future investigation or research. LCF technology is too undeveloped to be considered to have a body of existing knowledge associated with it. The conclusion of Applicant’s own Exhibit 1 (published in 20224) also weighs in favor of finding that the claimed subject matter, if even operative, lacks the real-world value required by 35 U.S.C. 101:
Any practical application of LCF will require efficient, self-sustaining reactions. Our work represents just the first step toward realizing that goal. If the reaction rates can be significantly boosted, LCF may open an entirely new door for generating clean nuclear energy, both for space missions and for the many people who could use it here on Earth.
Therefore, while LCF may indeed create nuclear fusion reactions, the Affidavit does not persuade the Examiner that Applicant is in possession of an invention that fulfills their stated utility of a fusion reactor that has “a net positive energy production and makes the fusion reaction commercially viable,” Specification at ¶ 7.
The Affidavit further states that “The claimed invention is not directed to cold fusion, but rather, to LCF, which is a fundamentally different process.” As detailed in the below 101 rejections, LCF is nuclear fusion occurring at temperatures orders of magnitude below what is accepted by the scientific community as capable of achieving ignition. While Applicant may call it LCF, it is still fusion occurring at cold temperatures. Accordingly, Examiner does not find the preferred nomenclature to be persuasive in overcoming the 101 and 112(a) rejections levied herein.
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, 4–8, and 14–16 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 Lattice Confinement Fusion (LCF). See Ans. 8 (citing Br. 26, Exhibit 1). Claim 1, for example, recites: (emphases added)
[a] method for locally hot but globally cold nuclear fusion comprising: within a metal lattice, providing cold deeply screened fuel [liquid deuterium] comprising target fuel particles at energies below 1 electron volt (eV) . . . ; and subjecting the deeply screened fuel to hot energetic neutrons at energies of 1 keV or more . . . thereby delivering a portion of kinetic energies of the energetic neutrons . . . and causing local nuclear fusion within the deeply screened fuel source.
Dependent claim 7 further delineates that “the deeply screen fuel that undergo local nuclear fusion per second is 10-9 or less of the total fuel volume.” Claim 15 adds a step of “using heat generated by nuclear reactions in the deeply screened fuel to perform work.”
In the field and background (Specification, ¶¶ 3–9), Applicant asserts that the present invention is “for facilitating localized nuclear fusion reactions” but then details how all previous attempts at achieving said nuclear fusion reactions have failed:
“However, in practice, nearly all deuteron collisions involve non-productive elastic scattering….The principle impediment for nuclear fusion is the strong Coulomb repulsion between the nuclei at close proximity. Bare nuclei cannot practically be fused…” ¶ 4
“In conventional hot fusion approaches, the Coulomb repulsion can be overcome by heating (typically of all of) the fuel to extremely high temperatures (e.g., ~20 keV, or 2x108 K, which is much greater than the interior temperature of the sun….Indeed, no known physical structure could withstand temperatures even a small fraction of those required in conventional hot fusion processes,“ ¶ 5
“Several other process-specific physical mechanisms leading to losses also make practical hot fusion impossible to date,” ¶ 6
“Currently, confinement time and plasma temperature conditions have been insufficient in both inertial confinement fusion (ICF) and magnetic confinement fusion (Tokamaks) in order to achieve positive power output. In other words, such reactors consume more energy than they produce,” ¶ 6
“There are many impediments to creating a net positive energy source from conventional hot fusion approaches,” ¶ 9
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 criterion5. For one, fusion on Earth requires temperatures several orders magnitude greater than 15 million degrees Celsius temperature at the sun’s core6. Mainstream nuclear science reckons that the requisite temperature for fusion on Earth is 100 million degrees Celsius or more7. The claimed method when read in light of the Specification, by contrast, operates as significantly lower temperatures than would be needed for nuclear fusion to occur. Specifically, claim 1 recites subjecting “cold deeply screened fuel” to “hot energetic neutrons”, and the Specification at ¶ 63 states that “‘cold’ means . . . corresponding to eleven thousand degrees Celsius” and “‘hot’ means . . . corresponding to millions of degrees.”
Applicants envisage that “the invention may provide solutions to the problems and needs in the art that have not yet been fully identified, appreciated, or solved by conventional nuclear processes and technologies,” Specification at ¶ 10 (emphases added); see also ¶¶ 11–19 and 79–86. Among the disclosed and asserted utilities are the following:
a “positive energy output,” Specification, ¶ 10;
to “create electricity, e.g., by heating water, creating steam, and using the steam to turn the generator,” ¶ 383;
“the heat may be used to drive a generator and create electricity,” ¶ 376;
“hundreds of watts in energy output,” ¶ 68 or even “1,000 watts,” ¶ 74;
the power output will last for over 3 years8, ¶ 68;
to solve the shortage of medical radioisotopes that “are in limited supply and/or are difficult to obtain” in order to “treat cancer,” ¶¶ 371–374;
“an element of safety over conventional nuclear reactors” including launching satellites into space using rockets, ¶ 71;
“a compact, long duration, zero maintenance heat source,” ¶ 71; and
“These embodiments may have useful lifetimes of 20 to 30 years or more without being touched,” ¶ 74.
The Specification describes fusion activity observed in experimental settings (for each test, samples were placed into glass vials (see Spec. ¶¶ 284–359), but does not demonstrate a release of energy greater than the amount of energy input, i.e., net positive energy such as for performing work. 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 conclusion of Applicant’s Exhibit 1 (published in 20229) also weighs in favor of finding that the claimed subject matter, if even operative, lacks the real-world value required by 35 U.S.C. 101:
Any practical application of LCF will require efficient, self-sustaining reactions. Our work represents just the first step toward realizing that goal. If the reaction rates can be significantly boosted, LCF may open an entirely new door for generating clean nuclear energy, both for space missions and for the many people who could use it here on Earth.
Other publications and documents evidence a consensus in the scientific community that there is yet to be a fusion technique—thermonuclear, cold, or hybrid—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 to (a) 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 the neutron irradiation of “deeply screened fuel” that “comprises liquid deuterium arranged within a metal lattice” for “causing local nuclear fusion,” 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 irradiating the “cold deeply screened fuel” with neutrons 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, even though this fact is acknowledged by Applicant in ¶ 5: “Indeed, no known physical structure could withstand temperatures even a small fraction of those required in conventional hot fusion processes.”
To the contrary, the “locally hot but globally cold nuclear fusion” of claim 1 is repeatedly disclosed as posing no risk to the surrounding metal structure (¶ 18, ¶ 52, ¶ 66, ¶ 68), not even being hot enough to boil the liquid-state fuel (¶ 18, ¶ 68). Inexplicably, it is also disclosed that, even if the invention melts, it eventually cools down and the “embedded fuel solidifies,” which is not possible because if the temperature is great enough to melt the metal, then the embedded liquid water fuel therein would boil off (it would not “solidify”).
The apparatus of the instant invention operates at low temperatures:
“room temperature, ambient temperature, or another temperature substantially below 1 eV,” ¶ 12;
“milli-electron volts (meV) up to one electron volt (eV), corresponding to eleven thousand degrees Celsius,” ¶ 63; and
“hot energetic neutrons at energies of 1 keV,” claim 1, which corresponds to 1.1 million degrees Celsius.
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 range of 11,000 degrees Celsius to 1.1 million degrees Celsius is equivalent to 11,273 Kelvin to 1,100,273 Kelvin. See, e.g., Spec. ¶¶ 12, 16. Therefore, Applicant’s invention appears to be in the field of low-temperature nuclear reactions (LENR), or cold fusion.
In summary, Applicant’s invention tries to “have it both ways,” citing (a) positive output hot nuclear fusion for its benefits (energy production) but (b) cold nuclear fusion for its benefits (the structure will remain intact and not melt).
Applicant’s “locally hot but globally cold nuclear fusion” allegedly occurs when neutrons irradiate deeply screened cold liquid deuterium (heavy water) within a metal lattice. The only specific working example provided in the Specification is at ¶¶ 279+. While claim 1 simply recites neutron irradiation (“subjecting the deeply screened fuel to hot energetic neutrons”), the Specification example actually starts with a 2.9 MeV electron beam irradiating a target, thereby setting off a convoluted chain of events: (i) irradiating a tantalum target with a 2.9 MeV electron beam (¶ 285, ¶ 293 and Table VI), which produces 2.5-2.9 MeV Bremsstrahlung gamma rays/photons (¶ 282), then (ii) the gammas/photons irradiate “highly screened” TiD2 or ErD3 (¶ 282, ¶ 290), then (iii) the deuterons in the TiD2 or ErD3 fuel experience photodisintegration (¶ 280), (iv) said photodisintegration is supposed to produce high-energy (“hot”) neutrons (¶ 280, ¶ 343), then (v) the hot neutrons are supposed to deliver half of their kinetic energy to “cold” deuterons, thereby producing “hot” deuterons (¶ 280, ¶ 343), which then finally (vi) interact with other nearby “cold” deuterons (¶ 280, ¶ 343) to cause D(d,n)3He nuclear fusion reactions via enhanced tunnelling (¶ 280, ¶ 282, ¶ 352).
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.
A review of the Specification shows that the success of this method depends largely, if not entirely, on the very first assumption being made, which is that the fuel must be “deeply screened”:
“Screening is effective not only to enhance nuclear tunneling, but also to increase the probability of Coulomb scattering at large angles, which is a requisite for efficient subsequent tunneling,” ¶ 11
“Deeply screened fuel nuclei can tunnel at lower energies, and can much more effectively scatter at high angles, leading to increased tunneling probabilities,” ¶ 49
“Therefore, efficient electron screening is a necessary ingredient for inducing and sustaining of nuclear fusion,” ¶ 57
“A key insight of some embodiments is that if the deuterons are highly screened by electron or plasma screening, the probability that fusion will occur becomes much larger, potentially by many orders of magnitude,” ¶ 67
“Electron screening is essential for efficient nuclear fusion reactions to occur,” ¶ 84
“Electron screening significantly increases the probability of large versus small angle Coulomb scattering of the reacting nuclei to facilitate subsequent nuclear reactions via tunneling,” ¶ 85
“Electron screening also increases the probability of fuel ions tunneling through the Coulomb barrier. Furthermore, screening significantly increases the probability of interaction between hot fuel and lattice nuclei due to Oppenheimer-Phillips processes, which could open potential routes to reaction multiplication,” ¶ 86
Unfortunately, while the disclosure repeatedly discusses the necessity of deeply screened fuel, no explanation is provided as to how the skilled artisan would take available fuel and transform it into “deeply screened fuel.”
Electron screening is a real but naturally occurring phenomenon, and attempts to manipulate and enhance it have been summarized by Cruz et al.16 as “there is still no solid theory which can describe quantitatively the observed enhancements” (abstract) and the “mechanism of the enhancement is not fully understood … These arguments motivate further studies” (Conclusions). Similarly, when Vesic et al.17 attempted to recreate findings of significant electron screening effects in high-Z metals (e.g., as suggested by Applicant in the Specification at ¶¶ 11, 60, 76, 78, 285, and 378), they were unable to do so, concluding that “These results raise the question about the validity of the measurements that showed large electron screening potentials” (abstract). Vesic et al. further stated that future work is “certainly needed” because “[the] electron screening mechanism in stellar plasma … remains unknown” (Conclusion). Even absent their troubling experimental results, Vesic et al. noted that “Experimental findings are systematically at odds with the theory” of enhanced electron screening, leading to “the absence of a reasonable theoretical predication” of the value of the electron screening for any particular metal (Introduction). Therefore, electron screening and any beneficial outcomes per its enhancement are still being studied, and the ordinary skilled artisan is not yet able manipulate this phenomenon to the point of producing a method/system capable of eliminating the Coulomb barrier to cause cold nuclear fusion, as claimed by Applicant.
The claimed invention—an LCF scheme—for generating and maintaining an exothermic cold fusion reaction sufficient to be used as a viable energy source via the neutron irradiation of a cold hydrogen-trapped metal (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) 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 perform work 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, 4–8, and 14–16 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 net energy from a nuclear fusion reaction is considered as being Applicant's specified utility (e.g., a “positive energy output,” Specification, ¶ 10; to “create electricity, e.g., by heating water, creating steam, and using the steam to turn the generator,” ¶ 383). Applicant’s invention is claimed as operating at energy ranges (1 eV, 1 keV, claim 1) 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, and Applicant’s mode of operation requires a very first step of precisely manipulating the natural phenomenon of electron screening well beyond what is currently considered possible. 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, 4–8, and 14–16 are rejected under 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, 4–8, and 14–16 are further rejected under 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, 4–8, and 14–16 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 admits that previous, well-funded and decades-long attempts at producing sustained and viable nuclear fusion reactors have been unsuccessful (Specification, ¶¶ 3–9). Even so, Applicant believes they have produced an operative method for achieving self-sustained nuclear fusion for net energy production (a “positive energy output,” Specification, ¶ 10; “These embodiments may have useful lifetimes of 20 to 30 years or more without being touched,” ¶ 74) in a low-temperature environment (“eleven thousand degrees Celsius,” ¶ 63).
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 claim to “causing local nuclear fusion” by mere neutron irradiation of liquid deuterium within a metal lattice (clm. 1) is extremely broad, as evidenced by its intentionally vague language (e.g., simply placing liquid deuterium inside a metal and beaming neutrons on it) followed by an unlikely result (“…causing local nuclear fusion”) as well as the fact that this process necessarily abandons modern nuclear physics, such that the outcomes of the recited method cannot be reasonably predicted and measured.
See MPEP § 2164.08.
(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.
See MPEP § 2164.05(a).
(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.
See MPEP § 2164.05(a).
(D) The level of one of ordinary skill: The claims are directed to an assertedly new field subsector of nuclear fusion technology—“lattice confinement fusion.” Thus, the level of ordinary skill in the art is challenging to ascertain. The claimed locally hot but globally cold technique is a hybrid thermonuclear (hot) fusion and cold fusion. Those generally skilled in the art would appreciate the obstacles and repeated failure in achieving/ sustaining nuclear fusion when the Lawson criterion is not satisfied—e.g., extreme global temperature. Those skilled in the art would also understand that cold or low-energy nuclear fusion, from which the instant invention is seemingly derived, lies within the realm of fringe science and offends generally accepted physics. See MPEP § 2164.05(b).
(E) The level of predictability in the art: Low-temperature nuclear fusion experiments are predictably unable to produce expected, reproducible, or meaningful empirical data.
See MPEP § 2164.03.
(F) The amount of direction provided by the inventor: Applicant's underlying theory is aspirational at best, and no independent experimental results or other persuasive supporting evidence is provided for the record.
See MPEP § 2164.03.
(G) The existence of working examples: A working example is provided (see Spec. ¶¶ 279+), but Applicant repeatedly refers to it as “theoretical,” and the person having ordinary skill in the art would find it unlikely that the observed outcomes are the result of nuclear fusion. Nor is there evidence that the provided example has been reliably reproduced or that it enjoys mainstream support.
See MPEP § 2164.02.
(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, and the provided theoretical guidance is insufficient to enable one to understand the underlying sequence of phenomena required to attempt such an endeavor. See MPEP § 2164.06.
Any claim not specifically addressed above that depends on a rejected claim is accordingly also rejected under 35 U.S.C. 112(a).
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The Specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1, 4–8, and 14–16 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “deeply screened” in claim 1 is a relative term which renders the claim indefinite. The term “deeply screened” is not defined by the claims. The Specification states, at ¶ 12, that “the term ‘deep screening’ designates the combined effects of shell, conduction, and/or plasma electrons screening a cold target deuteron, as appropriate to the respective embodiment.” The Examiner notes that “electron screening” refers to a naturally occurring phenomenon in which electrons in between outer electrons and the atomic nucleus possess a weak shielding effect—it is not generally understood as being manipulable. The Specification does not provide a clear standard for ascertaining the requisite degree of screening, or how one might go about increasing the amount of screening, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is entirely unclear what is occurring in Applicant’s fuel that makes it “deeply screened.”
In what way has Applicant somehow manipulated the electron orbitals of the atoms in their fuel that makes them “deeply screened”?
What is the difference between “deep” screening and, for example, a standard or normal amount of screening, or perhaps a moderate amount of screening?
If the method of claim 1 were performed on a fuel that were “somewhat” or “partially” screened, would this change have any effect on the outcome of the method (…causing local nuclear fusion”)?
Has an action been performed by Applicant prior to using fuel in the claimed process to make it “deeply screened”? Examiner cannot speculate what such an action might be.
Therefore, the metes and bounds of the claim are unclear.
Claim 4 recites “wherein the hot energetic neutrons are created by…photodisintegration of deuterons in the deeply screened fuel using gamma radiation.” It is unclear what the subject of “using gamma radiation” is. What is using gamma radiation? Are the deuterons “using gamma radiation”? If the phrase “using gamma radiation” were deleted, would the meaning of the limitation change, i.e., is the “radiation” of line 2 not coming directly from “photodisintegration of deuterons”? Why do the deuterons need to be “using” gamma radiation?
Claim 4 recites “wherein energy generated by local nuclear fusion reactions…”. There is insufficient antecedent basis for this limitation in the claim. No parent claim has yet recited energy generation.
Claim 5 recites “the metal lattice re-deuterates.” This wording implies that an initial step of deuterating the lattice has already been performed. However, the claims do not recite an initial step of deuterating the lattice. Alternatively, this wording may imply that the metal lattice was initially deuterated and then became un-deuterated. However, the claims do not recite any step of un-deuterating. In either interpretation, it is unclear how the lattice may be “re-deuterated.”
Any claim not specifically addressed in this section that depends from a rejected claim is also rejected under 35 U.S.C. 112(b) for its dependency upon an above–rejected claim and for the same reasons.
A Note from the Examiner about Desired Result-type Limitations
MPEP 2111.04 explains: “[T]he court noted that a ‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited18.’"
This portion of the MPEP is being applied to interpret claims in the instant application. These claims are replete with statements of desired results. These statements are identified by the Examiner and interpreted in accordance with MPEP 2111.04 as cited below:
“…that enhances nuclear tunneling,” claim 1
“…that scatter off of target fuel particles, thereby delivering a portion of kinetic energies of the energetic neutrons to the target fuel particles and causing local nuclear fusion within the deeply screened fuel,” claim 1
“…energy generated by local nuclear fusion reactions of number of atoms reacting within the deeply screened fuel is dispersed by conduction, convection, radiation, or any combination thereof, outside of the deeply screened fuel such that: the metal lattice re-deuterates, the deuterated material maintains a chemical composition, or the deeply screened fuel remains in a liquid state,” claim 5
“…a total rate of nuclear reactions in an overall volume comprising the deeply screened fuel is at least 109 reactions per second per cubic centimeter, but less than 1016 reactions per second per cubic centimeter,” claim 6
“…a portion of atoms of the deeply screened fuel that undergo local nuclear fusion per second is 10-9 or less of a total fuel volume,” claim 7
“…to provide process control and initiation,” claim 8
“…using heat generated by nuclear reactions in the deeply screened fuel to perform work,” claim 15
These clauses do not serve to patentably distinguish the claimed process over that of the applied reference(s), as long as the process of the cited reference(s) is (allegedly) capable of achieving the desired result.
For the purposes of examination:
If the prior art performs the actively-performable step but neglects to mention the subsequent desired result, it still reads on the claim if it is reasonably or allegedly capable of producing said desired result. These limitations are italicized in the below prior art rejection section.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code 102 not included in this action can be found in a prior Office action.
Claims 1, 4–8, and 14–16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pons19 (EP 0 463 089 B1).
Regarding claim 1, Pons teaches (pages 2–3) an alleged method for locally hot but globally cold nuclear fusion (“nuclear fusion,” page 2, l. 5), comprising: within a metal lattice, providing cold deeply screened fuel comprising target fuel particles (“deuterium atoms in the metal lattice,” page 3, l. 11) at energies below 1 electron volt (eV) (e.g., “0.5 eV,” page 3, l. 11) that enhances nuclear tunneling; and subjecting the deeply screened fuel to hot energetic neutrons (“stimulating or enhancing nuclear reactions in the lattice by exciting or bombarding the charged lattice with high energy rays or particles such as…high energy or thermalized neutrons,” page 2, ll. 43-45) at energies of 1 keV or more (Examiner notes that high energy neutrons are considered in the art to be in the MeV range20, which is greater than 1 keV) that scatter off of target fuel particles, thereby delivering a portion of kinetic energies of the energetic neutrons to the target fuel particles and causing local nuclear fusion within the deeply screened fuel (because Pons teaches every recited step, then if Applicant’s performance of these steps leads to this desired result, so will Pons’ performance of these steps); wherein the deeply screened fuel comprises liquid deuterium arranged within the metal lattice (“A preferred deuterium source is deuterated water,” page 2, ll. 47–48).
Regarding claim 4, Pons anticipates all the elements of the parent claim and additionally teaches wherein the hot energetic neutrons are created by radiation from one or more radioactive isotopes (“exciting the charged metal lattice with high energy rays or particles…may include incorporation of radioisotopic atoms…generation of neutrons in the lattice by incorporation of beryllium or the like into the lattice…bombardment of the charged lattice by a high-energy particles source or accelerator, such as a neutron or positron source,” page 11, ll. 7–22), photodisintegration of deuterons in the deeply screened fuel using gamma radiation (e.g., “the substrate may be a selected material whose atoms can be transmuted by bombardment with high energy gamma rays, neutrons, alpha or beta particles produced by the reaction events in the thin film,” page 10, l. 58 – page 11, l. 1), from reactions from hot neutron scattering in the deeply screened fuel, from secondary fission processes, or any combination thereof.
Regarding claim 5, Pons anticipates all the elements of the parent claim and additionally teaches wherein energy generated by local nuclear fusion reactions of a number of atoms reacting within the deeply screened fuel is dispersed by conduction, convection, radiation, or any combination thereof, outside of the deeply screened fuel such that: the metal lattice re-deuterates, the deuterated material maintains a chemical composition, or the deeply screened fuel remains in liquid state (because Pons teaches every recited step, then if Applicant’s performance of these steps leads to these desired results, so will Pons’ performance of these steps).
Regarding claim 6, Pons anticipates all the elements of the parent claim and additionally teaches wherein a total rate of nuclear reactions in an overall volume comprising the deeply screened fuel is at least 109 reactions per second per cubic centimeter, but less than 1016 reactions per second per cubic centimeter (because Pons teaches every recited step, then if Applicant’s performance of these steps leads to this desired result, so will Pons’ performance of these steps).
Regarding claim 7, Pons anticipates all the elements of the parent claim and additionally teaches wherein a portion of atoms of the deeply screened fuel that undergo local nuclear fusion per second is 10-9 or less of a total fuel volume (because Pons teaches every recited step, then if Applicant’s performance of these steps leads to this desired result, so will Pons’ performance of these steps).
Regarding claim 8, Pons anticipates all the elements of the parent claim and additionally teaches wherein the energetic neutrons are provided by photodisintegration of the deeply screened fuel via energetic photons provided by a linear accelerator (LINAC), directly from a radioactive element (“exciting the charged metal lattice with high energy rays or particles…may include incorporation of radioisotopic atoms…generation of neutrons in the lattice by incorporation of beryllium or the like into the lattice…bombardment of the charged lattice by a high-energy particles source or accelerator, such as a neutron or positron source,” page 11, ll. 7–22), or both, and the method further comprises: controlling the LINAC via a computing system to provide a desired photon flux at desired energy levels, inserting the radioactive element to provide hot neutrons into and/or near the deeply screened fuel, or both (Examiner notes that the use of a LINAC is optional per the first clause of the claim), to provide process control and initiation.
Regarding claim 14, Pons anticipates all the elements of the parent claim and additionally teaches further comprising: controlling a nuclear reaction rate by adjusting a flux of x-rays and/or gamma rays produced by an x-ray device, a linear accelerator (LINAC), or both (e.g., the flux increases from zero up to the desired level when the accelerator is applied to the lattice: (“exciting the charged metal lattice with high energy rays or particles…may include incorporation of radioisotopic atoms…generation of neutrons in the lattice by incorporation of beryllium or the like into the lattice…bombardment of the charged lattice by a high-energy particles source or accelerator, such as a neutron or positron source,” page 11, ll. 7–22).
Regarding claim 15, Pons anticipates all the elements of the parent claim and additionally teaches: using heat generated by nuclear reactions in the deeply screened fuel to perform work (because Pons teaches every recited step, then if Applicant’s performance of these steps may fulfill this intended use, then so may Pons’ performance of these steps; Pons also explicitly recites “performing work,” page 3, l. 28).
Regarding claim 16, Pons anticipates all the elements of the parent claim and additionally teaches: providing a neutron reflector, an envelope, a fissionable material, or any combination thereof to reflect or moderate hot neutrons, to facilitate further nuclear reactions, or both (e.g., container 14, Fig. 2, surrounds the fuel, containing the neutrons and reflecting them back into the interior of the container).
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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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 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).
2 www.nasa.gov/glenn/glenn-expertise-space-exploration/lattice-confinement-fusion
3 “Nuclear fusion reactions in deuterated metals” and “Novel nuclear reactions observed in bremsstrahlung-irradiated deuterated metals” both published in 2020.
4 See page 22 of the 25-page Affidavit/Declaration/Exhibit After Notice of Appeal in the file 11/28/2022.
5 “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 Feb. 28, 2025).
6 Id.
7 Id. See also Applicant’s Exhibit 1 at p. 12.
8 “108 seconds of power output” = 3.17 years
9 See page 22 of the 25-page Affidavit/Declaration/Exhibit After Notice of Appeal in the file 11/28/2022.
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 Cruz, J., et al. "Electron screening effects in nuclear reactions: still an unsolved problem." Journal of Physics: Conference Series. Vol. 337. No. 1. IOP Publishing, 2012.
17 Vesic, J., et al. "Influence of electronic environment on nuclear reaction rates." The European Physical Journal A 50.10 (2014): 153.
18 Hoffer v. Microsoft Corp., 405 F.3d 1326, 1329, 74 USPQ2d 1481, 1483 (Fed. Cir. 2005) (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)).
19 See the 43-page foreign reference in the file 03/31/2025.
20 L'Annunziata, Michael F., ed. Handbook of radioactivity analysis. Academic press, 2012. Chapter 1: Nuclear Radiation, Its Interaction with Matter and Radioisotope Decay:
1. Neutron Classification
Neutrons are generally classified according to their kinetic energies. There is no sharp division or energy line of demarcation between the various classes of neutrons; however, the following is an approximate categorization according to neutron energy:
•Cold neutrons < 0.003 eV
•Slow (thermal) neutrons 0.003–0.4 eV
•Slow (epithermal) neutrons 0.4–100 eV
•Intermediate neutrons 100 eV–200 keV
•Fast neutrons 200 keV-10 MeV
•High energy (relativistic) neutrons > 10 MeV