DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Status of Claims
Claims 1–7 are under examination.
This Final Rejection follows PTAB’s Decision 03/12/2026 in which the Board maintained the indefiniteness rejections and added their own indefiniteness rejections. The Board reversed the other rejections pro forma (see Decision, page 5) due to the indefiniteness rejections.
Response to Amendment
Applicant’s amendments overcome the Examiner’s indefiniteness rejections and the Board’s indefiniteness rejections.
Examiner maintains the 101 and 112, first paragraph, rejections for future review by the Board.
The amendments have overcome the 102 and 103 rejections, and an updated search for the new limitations revealed art under which new 103 rejections are made below.
Response to Arguments
Applicant’s arguments regarding the Drawing objections are persuasive; these objections are withdrawn.
Applicant's remaining arguments, see Remarks dated 04/14/2026, have been fully considered but they are not persuasive for the reasons detailed below.
Applicant states that the application is allowable because Applicant has fixed the indefiniteness rejections, and PTAB reversed all the other rejections. However, PTAB only reversed the other rejections pro forma (see Decision 03/12/2026, page 5) due to the indefiniteness rejections. Therefore, it would be inappropriate for Examiner to allow this case with the 101 and 112, first paragraph, rejections still pending.
Response to the argument that the claimed heat generation is non-nuclear:
The 112, first paragraph, and 101 rejections are based on the Examiner’s review of the disclosure and ultimate determination that the mechanism responsible for the claimed “heat generation” (claim 1) is nuclear fusion and, more specifically, cold fusion.
Examiner and Applicant conducted an interview whose Summary is in the file 08/26/2024.
As recorded in said Interview Summary, Applicant stated that the current claims are not directed towards any type of nuclear reaction (i.e., not hot/thermonuclear fusion, and not cold fusion); rather, the claims relate entirely to a chemical (non-nuclear) process.
In response, Examiner has thoroughly reviewed the Specification and cannot find adequate support for this argument. As background, the reader must understand that the difference between a chemical reaction and a nuclear reaction is the following:
“Nuclear reactions involve a change in an atom's nucleus, usually producing a different element. Chemical reactions, on the other hand, involve only a rearrangement of electrons and do not involve changes in the nuclei1.”
In an atom, the nucleus includes neutrons and protons, whereas the electrons are located outside the nucleus. Therefore, a reaction that involves protons or neutrons is a nuclear reaction.
The Specification is replete and explicit that the created heat is of nuclear origin, as laid out by the Examiner below.
The background of the invention (¶¶ 4–5):
Paragraph 4 states that the “invention relates generally to the creation of industrially useful heat energy using hydride lattice material, as exemplified by the following references.” This statement is understood to mean that the exemplary references support the modus operandi of Applicant’s invention. Examiner addresses each below.
US 2007/0206715: This publication is explicitly directed towards nuclear fusion. Claim 1 recites “An apparatus for energy generation comprising…a mechanism for inducing phonons in said core so that reactants, when introduced into said core, undergo nuclear reactions.” The abstract states “A practical technique for inducing and controlling the fusion of nuclei within a solid lattice.” Applicant’s own description is that “Godes_2007 describes a regime that is believed to operate on the basis of successive electron capture in protons with subsequent neutron absorption in hydrogen isotopes,” ¶ 5. The electron capture of a proton resulting in neutron production is explicitly nuclear. The application associated with US 2007/0206715 was rejected by the Office for lack of utility and enablement.
US 2011/0005506: This publication is explicitly directed towards nuclear fusion. The inventor describes its purpose as to “achieve a practical method and apparatus for generating an energy amount larger than the consumed energy, and this by exploiting nuclear energy generating processes starting from electrochemical energy,” ¶ 28. This application was rejected by the Office for lack of utility and enablement.
US 2011/0249783: This publication is explicitly directed towards nuclear fusion. Claim 1 recites “A method for producing energy by nuclear reactions between hydrogen and a metal.” This application was rejected by the Office for lack of utility and enablement.
Therefore, every one of the references selected by Applicant to support “the present invention” and mechanism for the “creation of industrially useful heat energy,” ¶ 4, are inoperative and non-enabled nuclear fusion reactors.
The background of the invention does not include any references to chemical (non-nuclear) processes that could be responsible for the claimed “heat generation,” claim 1.
The summary of the invention (¶¶ 6–21):
The mechanism that Applicant believes powers their invention is neutron production following the capture of an electron by a proton:
“Embodiments generate thermal energy by neutron generation, neutron capture, and subsequent transport of excess binding energy as useful heat for any application,” ¶ 6
“Embodiments provide…an improved way to control low energy nuclear reactions (“LENR”) hosted in the lattice by controlling hydride formation,” ¶ 6
“The lattice transmits phonon energy sufficient to influence proton-electron capture,” ¶ 8
“A hydride reactor includes a solid lattice…which can absorb hydrogen nuclei, a gas loading source to provide the hydrogen species nuclei which are converted to neutrons,” ¶ 8
“By controlling the level of phononic energy and controlling the loading and migration of light element nuclei into and through the lattice, energy released by neutron captures may be controlled,” ¶ 9
“These hydrogen ions interact in one of two ways: by electron capture or by neutron capture, with the newly formed neutrons forming deuterons, tritons, or 4H. The neutrons are formed from protons that have captured electrons by absorption of sufficient energy for transmutation from separate proton and electron to neutron,” ¶ 10
“This whole hydrogen-to-helium transmutation process can continue,” ¶ 11. Examiner notes that “hydrogen-to-helium transmutation” means a nuclear transmutation because the element itself is changing.
“transmutation of the lattice material through neutron accumulation,” ¶ 14
“stimulating the lattice to generate phonons in the lattice…to undergo nuclear reactions,” ¶ 16
“The method can further comprise controlling the nuclear reactions,” ¶ 17
The summary of the invention does not provide any chemical (non-nuclear) reactions that could be responsible for the claimed “heat generation” of claim 1.
The description of specific embodiments (¶¶ 38–99):
The description of specific embodiments describes the design and gas flow within the reactor. Very little in this section is directed towards the origin of the generated heat until ¶ 87 when the actual operation and neutron production of the reactor is described. Examiner reminds the reader that neutron generation is an exclusively nuclear process.
Paragraphs 53, 81, and 83–86 discuss chemical processes to remove excess oxygen and undesirable oxides, but these processes are not disclosed as generating heat, but rather pre-operation prep.
“Feedback is determined by increase in the heat of the gas caused by the electron and neutron capture mechanisms described in Godes_2007,” ¶ 63. As noted above, Godes_2007 is US 2007/0206715, which is directed towards nuclear fusion.
“The system is started by heating the gas…to the point where the lattice material absorbs hydrogen, and may begin to generate neutrons and heat,” ¶ 87.
“The reactor operating conditions are monitored and controlled to promote the production of neutrons. Hydrogen ions migrating in the lattice capture these neutrons preferentially. The optimal conditions are maintained to the system to generate an adequate supply of neutrons for capture and energy generation by release of binding energy,” ¶ 90. Examiner notes that the neutron-induced release of binding energy is an exclusively nuclear process. “Binding energy” refers to the energy which binds together the protons and neutrons inside the nucleus of the atom.
“The inventive mixed gas reactor with phonon control can generate industrially useful heat continuously from the controlled electron capture reaction (CECR; described as quantum fusion reaction in Godes_2007),” ¶ 96.
In summary, claim 1 recites a heat generation method. Examiner has pored over the Specification and cannot find any heat-generating mechanism that is chemical in origin. Only nuclear processes are disclosed.
Specifically, the mechanism responsible for Applicant’s alleged heat generation is “controlled electron capture reaction” or CECR, as stated in ¶ 96. CECR is a term coined by Applicant and described on their own website as a “unique form of LENR2” (low-energy nuclear reaction).
Regarding the 101 rejections for lack of utility, the asserted utility is based on the disclosure, not the claims. The asserted utility is to “generate industrially useful heat,” Specification at ¶ 96, from the Fleischmann & Pons concept of incorporating hydrogen into a metal lattice at low temperatures (“cold fusion”) via a “controlled electron capture reaction” or “quantum fusion reaction,” Specification at ¶ 96. Applicant’s invention is therefore an inoperable invention under 35 USC § 1013. Even though the claims themselves do not recite “cold fusion,” the only disclosed mechanism for the claimed “heat-generating reactions” are nuclear reactions, as detailed above, and, specifically, cold nuclear fusion reactions.
Accordingly, the 101 rejections are maintained.
Regarding the 112, first paragraph rejections for lack of enablement, 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, first paragraph rejections are maintained.
Specification
The specification is objected to under 35 U.S.C. 112, first paragraph, as failing to provide an adequate written description of the invention and further for failing to provide an enabling disclosure.
The invention that one skilled in the art must be enabled to make and use is that defined by the claim(s) of the particular application (in this case, claims 1–7). A patent claim is invalid if it is not supported by an enabling disclosure.
There is no reputable evidence of record to support the claim that the present invention involves nuclear reactions, nor is there evidence that claims of excess thermal energy are valid and reproducible, nor is there evidence that the invention is capable of operating as indicated or capable of providing a useful output.
The invention as disclosed in the Specification is considered as being based on the “cold fusion” concept set forth by Fleischmann and Pons (see the provided reference4 by Fleischmann et al.), hereinafter referred to as F&P. This concept relies on the incorporation of hydrogen into a metal host lattice at temperatures significantly lower than the temperatures at which such phenomena have repeatedly been observed. See ¶ 38 of the Specification: “Embodiments of the present invention control dissolving the reactive gas (e.g., hydrogen; often referred to as fuel gas or simply fuel) in a transition metal lattice structure for the purpose of producing industrially useful heat.” Thus, Applicant’s disclosed utility is “producing industrially useful heat” from the F&P concept of incorporating hydrogen into a metal lattice at low temperatures, i.e., cold fusion.
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 University5 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.”
The method for “heat generation” by “transmitting current pulses through…the lattice material” claimed by Applicant (claim 1, last clause) is not capable of producing or sustaining such reactions. The method provides no mechanism for achieving and maintaining the temperatures of hundreds of millions of degrees Kelvin known to be required to achieve nuclear fusion6.
Applicant’s disclosed invention necessarily requires the same presumption as that of F&P, which is that the fusion barrier between proximate hydrogen nuclei may be overcome by precisely manipulating their positions with the aid of a well-defined host structure. This belief is fundamental to F&P–type experiments such as that disclosed and claimed by Applicant: “…transmitting current pulses through…the lattice material…thereby inducing the reactants that have been absorbed into the lattice material to undergo heat-generating reactions” (claim 1). This is accomplished, according to Applicant, via “an improved way to control low energy nuclear reactions (“LENR”) hosted in the lattice by controlling hydride formation,” (¶ 6) via “proton-electron capture” (¶ 8) in a process Applicant has termed a “controlled electron capture reaction (CECR; described as quantum fusion reaction),” ¶ 96.
Thus, it is clear that Applicant’s invention is a variation of the cold fusion concept set forth by F&P. Applicant’s variation relies on the presumption that the fusion barrier between proximate hydrogen nuclei may be overcome by manipulating their positions with the aid of a lattice such as a nickel lattice (see claim 7), just like the metallic lattice of F&P.
However, as evidenced below, the cold fusion concept is widely characterized by those skilled in the art as unrealizable and thus any purported cold fusion device or method to use such a device unworkable.
Background
F&P concluded their analysis with the statement: “We realise that the results reported here raise more questions than they provide answers, and that much further work is required on this topic.” Indeed, immediately following its publication, numerous laboratories in both the U.S. and abroad attempted to confirm the experiment’s seemingly extraordinary results. These attempts were primarily negative, and although there were initially some scattered piecemeal confirmations, they were either retracted by the experimenters themselves or shown to be in error after subjection to proper peer review. See the Stipp article in the Wall Street Journal and the Browne article in the New York Times. James R. Wilson (see the James R. Wilson reference, particularly pages 158-159 and 165) had the following to say about these initial would-be positive results in his paper on the importance of responsible authorship and peer review:
“Perhaps the most egregious failure of the peer review system in recent years was the publication of the initial paper on cold fusion by Fleischmann and Pons in the Journal of Electroanalytical Chemistry just four weeks after submission; and there is some evidence that this paper was reviewed only by the editor of the journal and not by independent referees.”
As such, the general consensus of those skilled in the art from the various laboratories is that the assertions by F&P were based on experimental errors and misinterpretation, as summarized by Kreysa, et al.:
“We have tried to confirm the results of the recent paper by Fleischmann and Pons in this Journal. Although we have, in principle, observed all the phenomena which they reported, additional check experiments have enabled us to explain all our results without assuming any nuclear fusion.”
See also Lewis et al., Hilts, Ohashi et al., Miskelly et al., Chapline, and Petrasso et al.
Hilts states that the MIT experiments failed to produce any of the excess heat reported by the Utah group.
Lewis et al. state in summary (page 525) that they found no evidence of excess enthalpy or helium in their experiments, and they identified various possible sources of error which could lead to the erroneous conclusion that excess power was produced (note pages 528–530).
It quickly became the general consensus by those skilled in the art and working at the various laboratories that there is no reputable evidence to support the allegation or claim of excess heat production, nor is there any reputable evidence of the production of neutrons, gamma rays, tritium, helium, etc., to support the allegations or claims that nuclear reactions are taking place. See also Cooke, Alber et al., Faller et al., Cribier et al., Hajdas et al., Shani et al., Ziegler et al., Price et al., Schrieder et al., and page A3 of the 3/29/90 edition of the Washington Post, which refers to the negative findings of a physicist who tested Pons’ own cold fusion apparatus for nuclear output [for a more complete analysis of said “negative findings,” note the article by Salamon et al.]).
Also of interest in this respect is the Cooke reference which, on pages 4–5, refers to the attempts at Harwell to obtain “cold fusion” and that Fleischmann (of F&P) had requested help from Harwell in verifying the cold fusion claims. The final paragraph on said page 5 concludes:
“After three months of around-the-clock work at a cost of over half a million dollars, the project was terminated on June 15. This program is believed to be one of the most comprehensive worldwide with as many as 30 cells operating at a time and over 100 different experiments performed. The final result of this monumental effort in the words of the official press release was, ‘In none of these experiments was there any evidence of fusion taking place under electrochemical conditions.’ It should also be added that there was no evidence of excess heat generated by any of their cells.”
Conclusions of the Department of Energy 2004 Report of the Review of Low Energy Nuclear Reactions were summarized as follows:
“Reviewers expert in nuclear physics noted that the cold fusion mechanism put forward by proponents is not in accord with presently accepted knowledge of D + D fusion. Specifically, D + D fusion is accompanied by the production of protons, neutrons, tritons, 3He, 4He and high energy gamma rays, all in well known proportions. The fusion channel resulting in 4He and high energy gamma rays occurs approximately only once for every 107 D + D fusion reactions. These characteristic proportions for the production of the fusion products are found for every energy of the incident deuteron measured so far, down to the lowest that has been measured.
The review document and oral presentations made the argument that the branching ratios are different at low energies and that in cold fusion, 4He fusion channel is predominant. According to the review document, no high energy gamma rays appear to accompany the 4He, as is observed in D-D fusion reactions. Instead, the approximately 24 MeV in energy resulting from D-D fusion was purported to appear as heat in the material lattice. To explain these unusual characteristics, the reviewers were presented with a theoretical framework that purported to describe how collective energy from the material lattice couples to a deuteron pair to induce fusion, how the only fusion reaction channel that occurs would be the production of 4He, and how all the energy is coupled back into the material in the form of heat instead of high energy gamma-rays. The reviewers raised serious concerns regarding the assumptions postulated in the proposed theoretical model for the explanation for 4He production.”
There has been a continuous stream of publications from 1989 onward showing that virtually none of the scientific community considers the alleged positive results of “cold fusion” experiments as being confirmed. In this respect, attention is direction to Merriman et al., Ewing et al., Albagli et al., Bosch et al., Fleming et al., Balke et al., Henderson et al., Huizenga (IV), and Rogers et al.
Additionally, the provided Fukai reference shows that hydrogen nuclei in a palladium lattice cannot come close enough to each other to undergo nuclear fusion, and that the electrons do not provide an effective screening.
These references provide ample and clear evidence that no excess heat is generated in cold fusion systems, nor is there any evidence of nuclear reactions or transmutations taking place.
Reproducibility
The amount of guidance or direction necessary to enable an invention is inversely related to the amount of knowledge in the state of the art, as well as to the predictability of the art. In re Fisher, 427 F.2d 833,839, 166 USPQ 18, 24 (CCPA 1970); MPEP § 2164.03. The art of the present invention, an apparatus for generating commercially viable, excess thermal energy (“industrially useful heat,” Specification, ¶ 38 and “excess binding energy as useful heat for any application,” ¶ 6 and “heat generating applications,” ¶ 6) from “low energy nuclear reactions” (¶ 6, original abstract7, and original title8) via “the loading and migration of light element nuclei into and through the lattice” (¶ 9) is too undeveloped to be considered to have a body of existing knowledge associated with it, much less predictability of results. Applicant notes that “It is known that hydrogen is absorbed in nickel and other transition metals given appropriate temperature, pressure and confinement conditions” (¶ 7). These known parameters of “appropriate temperature, pressure and confinement conditions” are those of hot fusion reactions or on the surface of the Sun and which are in stark contrast to the temperature disclosed by Applicant during reactor prep (“for a nickel lattice, a temperature on the order of 625 C would be sufficient to initiate breakdown of the oxides,” ¶ 83). 625 degrees Celsius is equivalent to 898 degrees Kelvin, many orders of magnitude lower than the hundreds of millions of degrees Kelvin known to be required to achieve nuclear fusion. Applicant must produce a set of instructions—a recipe—that would enable a skilled artisan to produce the same results of nuclear fusion claimed by Applicant. However, Applicant provides no evidence that the purported fusion reaction occurred even once, let alone that it could be reproduced by the skilled artisan using the claimed method.
Undue Experimentation
It is the Examiner’s position that an undue amount of experimentation would be required to produce an operative embodiment of Applicant’s invention. The Examiner has cited numerous documents showing that experimenters have obtained negative results using various types of cold fusion apparatuses and methods, all based upon the cold fusion concept set forth by F&P.
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, Examiner summarizes the above-elaborated explanations as to why Applicant’s invention fails to satisfy the enablement requirement:
(A) The breadth of the claims: Applicant’s claim to provide “heat-generating reactions” by merely “transmitting current pulses through…the lattice material” (clm. 1) is extremely broad, as evidenced by its lack of detail and conclusory statements (“reactants” are simply “absorbed into the lattice material to undergo heat-generating [nuclear] reactions”) as well as the fact that this process, as disclosed by Applicant, necessarily re-interprets modern nuclear physics, to the extent that the outcomes of such a process 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 low-energy nuclear fusion as a substantial source of useful energy (Spec., ¶ 6); 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 level of ordinary skill in the art cannot be ascertained because the art encompassing low-temperature nuclear fusion research lies within the realm of fringe science and subsequently does not possess a recognizable standard level of associated skill.
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 unworkable (“The lattice transmits phonon energy sufficient to influence proton-electron capture,” Spec., ¶ 8 and “The neutrons are formed from protons that have captured electrons by absorption of sufficient energy for transmutation from separate proton and electron to neutron,” Spec., ¶ 10 and “4H is unstable and…emits an electron to become an atom of 4He, thereby releasing considerable phonon energy,” Spec., ¶ 11), and the claimed supposed results (“subsequent transport of excess binding energy as useful heat for any application,” Spec., ¶ 6 and “for the purpose of producing industrially useful heat,” Spec., ¶ 38) are unsupported.
See MPEP § 2164.03.
(G) The existence of working examples: Examples are entirely theoretical and describe largely conventional methods of controlling gas flow in a reactor for which the capability of nuclear fusion is inexplicably attributed.
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 infinite, as 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.
Working Example
It is noted that the specification need not contain an example if the invention is otherwise disclosed in such a manner that one skilled in the art would be able to practice it without an undue amount of experimentation. See In re Borkowski, 422 F.2d 904, 908, 164 USPQ 642, 645 (CCPA 1970). In this case, because Applicant has not disclosed the invention in such a manner that a skilled artisan would be able to practice it without undue experimentation (as evidenced by Examiner in the preceding analysis), Applicant may therefore opt to provide a sufficient working example of an embodiment of the invention. See MPEP § 2164.02 for more on the working example requirement.
Applicant’s disclosure, however, does not contain the requisite example in practical detail. There is no adequate description or enabling disclosure of the parameters of a specific operative embodiment of the invention. Applicant’s disclosure is inadequate for allowing the skilled artisan to produce nuclear reactions in the claimed manner (by “transmitting current pulses through… the lattice material…thereby inducing the reactants…to undergo heat-generating reactions,” claim 1).
The setup for the claimed invention involves an F&P-type experiment performed at low temperatures (“low energy nuclear reactions,” ¶ 6 and “CECR” or “quantum fusion reaction,” ¶ 96, which Applicant’s website describes as a “unique form of LENR9” [low-energy nuclear reaction]). Low energy means low temperatures. Low temperatures are acceptable for chemical reactions but not for heat-producing nuclear fusion reactions.
Examiner further notes that the provided disclosure is silent per an explanation as to how the claimed reaction overcomes the Coulomb barrier, which is perhaps the single most important explanation that any low-temperature, low-pressure method claiming nuclear fusion must provide. As is known by the person having ordinary skill in the art, a reaction between the nuclei of hydrogen and nearby neutrons cannot occur unless the Coulomb barrier is overcome. As is also known, the Coulomb barrier can only be overcome at temperatures and pressures vastly outside of the disclosed “low energy” ranges (i.e., hundreds millions of degrees Kelvin for known fusion reactions versus Applicant’s disclosed 625° C, ¶ 83).
As a source for the supposed excess energy, the disclosure claims various inaccurate reactions with hydrogen ions (¶¶ 10–11) including the production of 4H via the absorption of neutrons by deuteron, wherein the 4H “emits an electron to become an atom of 4He, thereby releasing considerable phonon energy” (¶ 11). This is false. Hydrogen-4 decays via neutron emission 100% of the time, via the reaction
4
1
H
→
3
1
H
+
1
0
n
, as evidenced by the NNDC10 (National Nuclear Data Center):
Table 1: Decay of Hydrogen-4
Hydrogen-4 does not decay via beta decay (electron emission) as claimed by Applicant in ¶ 11, and thus cannot release the “considerable phonon energy” in the manner disclosed.
Additionally, Applicant’s assertion that hydrogen-4 “has a half-life of 30 ms” (¶ 11) is demonstrably false. Hydrogen-4 has the incredibly short half-life of 1.39 x 10-22 seconds11.
Simply stating that a nuclear reaction is believed to have occurred is not sufficient substantiating evidence that it has occurred or even that it can occur. Sufficient substantiating evidence may be based on reproducible and laboratory-produced data, widely-accepted and falsifiable scientific theories (e.g., the nuclear strong force), a working model, or a supporting opinion in a widely-respected and properly peer-reviewed publication (existing credible publications do not support Applicant’s interpretation of nuclear fusion).
The Specification in its Current State
In its present form, the disclosure is completely devoid of useful instruction that might enable a person skilled in the art to follow Applicant’s methods, account or control for any necessary assumptions, or manipulate the input data with any expectation of how the outcome may be affected.
The provided examples appear to be intentionally vague and speculative in nature, simply setting up chemical experiments and declaring them capable of producing and sustaining nuclear reactions.
Thus, the skilled artisan is tasked with attempting to make and use an invention that, as presently claimed, must somehow reduce (by an undisclosed factor) the fusion barrier (of undisclosed magnitude) between hydrogen nuclei by simply placing the nuclei in the vicinity of a “cluster of neutrons” (¶ 11) at temperatures much lower than those necessary for such reactions to occur (“625 C,” ¶ 83). The skilled artisan must then be able to use this invention in such a large-scale and efficient manner such that it can vaporize water into superheated steam capable to drive an electric generator via a steam turbine like in conventional fission reactors (“conventional boilers,” ¶ 41). Armed with a general knowledge of the art and with Applicant’s disclosure, the skilled artisan cannot be expected to accomplish the operations claimed without undue experimentation.
Moreover, it is not seen wherein the Specification any particular structure or method is disclosed which is unique to Applicant’s method and which makes Applicant’s cold fusion method operative, whereas the systems and methods disclosed in the above-referenced numerous teachings by skilled artisans in various laboratories were not operative. There is no evidence to indicate that Applicant has succeeded where others have failed in arriving at an operative cold nuclear reaction method, i.e., one that has progressed beyond the point of an unproven theory or concept which still requires an undue amount of experimentation to enable the artisan to make and use the inventive system for its claimed purpose.
The skilled artisan can therefore only determine that either some essential element(s) of the claimed invention is/are being withheld, or the invention as claimed is simply inoperable.
It is thus considered that the Examiner has set forth a reasonable and sufficient basis for challenging the adequacy of the disclosure. The statute requires the application itself to inform, not to direct others to find out for themselves. In re Gardner et al., 427 F.2d 786 (CCPA 1970), 166 U.S.P.Q. 138; In re Scarbrough, 500 F.2d 560, 565, 182 USPQ 298, 301 (CCPA 1974). Note that the disclosure must enable a person skilled in the art to practice the invention without having to design structure not shown to be readily available in the art. In re Hirsch, 295 F.2d 251 (CCPA 1961).
Accordingly, the specification fails to teach a person having ordinary skill in the art how to make and use the invention, and the specification is therefore inadequate.
The disclosed invention is not, as required by 35 U.S.C. 101, an operable invention of any practical use to the public. To be patentable, the claimed invention as a whole must be useful and accomplish a practical application. That is, it must produce a “useful, concrete and tangible result.” See In re Alappat, 33 F.3d 1526, 1544, 31 USPQ2d 1557 (Fed. Cir. 1994) and also State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368, 1373-4, 47 USPQ2d 1596 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 851 (1999). The purpose of this 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 hopeful concept, or subject matter that is simply a starting point for future investigation or research. For more examples of this real-world applicability requirement in action, see Brenner v. Manson, 383 U.S. 519, 528-36, 148 USPQ 689, 693-96 (1966); In re Fisher, 421 F.3d 1365, 76 USPQ2d 1225 (Fed. Cir. 2005); In re Ziegler, 992 F.2d 1197, 1200-03, 26 USPQ2d 1600, 1603-06 (Fed. Cir. 1993).
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 1–7 are rejected under 35 U.S.C. 101 because the disclosed invention is inoperative and therefore lacks patentable utility for the detailed reasons provided above in the specification objections that are accordingly incorporated herein. Applicant’s claimed invention is directed to a method of producing “heat generating reactions” (claim 1) for practical applications from a low-temperature fusion reaction (“industrially useful heat,” Specification, ¶ 38 from “low-energy nuclear reactions,” Specification, ¶ 6). The production of said excess heat from a low-temperature fusion reaction is considered as being Applicant’s specified utility.
In describing said specified utility, Applicant has, at best, set forth what may be considered a concept or an object of scientific research. While useful as a thought experiment, this fact creates a type of deficiency in which an assertion of specific and substantial utility for the claimed invention made by an Applicant is not credible. See MPEP 2107.01(II) for further examples of the Federal courts’ treatment of inventions claiming incredible utility.
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. As set forth in the Objection to the Specification above, there is currently no reputable evidence of record to indicate the invention has been reduced to the point of providing an operative low-temperature nuclear fusion system. See also 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 pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
Claims 1–7 are rejected under 35 U.S.C. 112 (pre-AIA ), first paragraph, 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, for the same reasons set forth in the above Objection to the Specification, which are accordingly incorporated herein. In this case, while the claims do not explicitly recite “cold fusion,” the Examiner has provided a preponderance of evidence that the only disclosed mechanism for producing the “heat-generating reactions” of claim 1 is cold nuclear fusion. Federal Circuit precedent has shown that claims which are broad enough to encompass significant non-enabled subject matter will be found non-enabled. For example, note: Sitrick v. Dreamworks, LLC, 516 F.3d 993, 997-1000 (Fed. Cir. 2008); Automotive Technologies Intern., Inc. v. BMW of North America, Inc., 501 F.3d 1274, 1285 (Fed. Cir. 2007); Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 905–09 (Fed. Cir. 2004); and In re Wright, 999 F.2d 1557, 27 USPQ2d 1510 (Fed. Cir. 1993).”
Claims 1–7 are rejected under 35 U.S.C. 112 (pre-AIA ), first paragraph, 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 or a joint inventor, at the time the application was filed, had possession of the claimed invention, for the same reasons set forth in the above Objection to the Specification, which are accordingly incorporated herein. Specifically, it is unclear whether Applicant had actual or constructive possession of the claimed device at the time of filing.
Claims 1–7 are rejected under U.S.C. 112 (pre-AIA ), first paragraph, because the claimed invention is not supported by either a credible asserted utility or a well-established utility for the same reasons set forth in the above Objection to the Specification as well as in the 101 sections above, which are accordingly incorporated herein; as such, one skilled in the art clearly would not know how to use the claimed invention.
Any claim not specifically addressed in this section that depends from a rejected claim is also rejected under 35 U.S.C. 112, first paragraph, 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 recited12.’"
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: “…to remove free oxygen from the layer of lattice material,” claim 1
“…so that the lattice material absorbs reactants from the reactant gas,” claim 1
“…thereby inducing the reactants that have been absorbed into the lattice material to undergo heat-generating reactions,” claim 1
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.
In this case, the cited process in the below-applied references is allegedly capable of being used for the above-cited intended use/desired result statements. In other words, if Applicant’s claimed process of “introducing a gas mixture including at least the reactant gas into the container” (claim 1) is allegedly capable of achieving the desired outcome of “so that the lattice material absorbs reactants from the reactant gas,” then so is that of the cited references which performs the same preceding step.
These desired result-type clauses are shown in italics in the below prior art rejection sections.
Claim Rejections - 35 USC § 103
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 1–7 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Heredy (WO1992008232A2) in view of Godes (US 2007/0206715).
Regarding claim 1, Heredy discloses a method comprising: a container (the exterior container pictured in Fig. 1) containing a heater core (15), the heater core having a tubular configuration and a layered structure forming a transmission line (G/L, E/K), the heater core comprising a tube (F) of dielectric material (“insulator F which is made of a ceramic material of high dielectric constant,” pg. 13, ll. 24-25) having an inner surface and an outer surface, a layer of lattice material (E or G13) disposed on one of the inner surface (G) or the outer surface (E), and a layer of an electrically conductive material (G or E) disposed on the other of the inner surface (G) or the outer surface (E), wherein the layer of lattice material and the layer of electrically conductive material constitute respective conductors of the transmission line (G becomes L and E becomes K, which all together become the transmission line powered by “variable voltage power source M,” pg. 13, l. 31), the container containing the heater core such that a reactant gas (“Deuterium gas,” pg. 14, l. 8), when present in the container, is in contact with the layer of lattice material (pg. 14, ll. 8-11), thereafter, introducing a gas including at least the reactant gas (“Deuterium gas,” pg. 14, l. 8) into the container so that the lattice material absorbs reactants from the reactant gas (as explained on pg. 12, l. 23 – pg. 13, l. 15); and transmitting current pulses (“variable voltage power source M,” pg. 13, l. 31; see also pg. 13, ll. 15-17) through the transmission line formed by the lattice material and the electrically conductive material, thereby inducing the reactants that have been absorbed into the lattice material to undergo heat-generating reactions (“fusion reaction,” pg. 13, l. 19).
Heredy does not explicitly disclose the carrier gas or a “mixture” of gases.
Godes does.
Godes teaches flowing a carrier gas (“hydrogen ions from water surrounding the core,” ¶ 15) through a container, the carrier gas being flowed to remove free oxygen from the layer of lattice material (because Godes teaches the performable step, then if Applicant’s desired result is allegedly capable of following said step, then so it would be in Godes; additionally, hydrogen ions are capable of removing oxygen due to their charged nature as ions) and introducing a gas mixture (“hydrogen ions” as cited above plus “increasingly high-atomic-weight isotopes of hydrogen, including 4H and helium, ¶ 16) including at least a reactant gas (“4H,” ¶ 16) into the container.
The combination of the carrier gas and gas mixture of Godes with the method of Heredy would have produced a method for alleged nuclear fusion heat reactions wherein hydrogen and helium gases flow through a container to contact electrically conductive lattice material through which current pulses are being transmitted, i.e., Applicant's claimed invention.
This combination would have been obvious to one having ordinary skill in the art before the effective filing date of the invention, as it produces no unexpected results. In view of the prior art teachings of Heredy, a person of ordinary skill who believed in cold fusion would have predicted that combining Godes’ gases with Heredy's cold fusion method would have produced Applicant's claimed invention of a cold fusion method where current pulses energized a lattice in contact with hydrogen and helium gases.
The skilled person’s motivation for the combination would have been the expectation of, as explained by Godes in ¶¶ 15-16, to allegedly induce “quantum compression” from the flowing hydrogen, which is converted into heavier hydrogen isotopes (e.g., 4H) and ultimately helium, to “result in kinetic energy transfer to the core in the form of phonons, which is dissipated by a suitable heat exchange mechanism.”
Regarding claim 2, the above-described combination of Heredy with Godes teaches all the elements of the parent claim, and Heredy further discloses controlling the heat-generating reactions by adjusting the current pulses (page 13, ll. 11-19 or page 17, ll. 3-8).
Regarding claim 3, the above-described combination of Heredy with Godes teaches all the elements of the parent claim, and Heredy further discloses controlling the heat-generating reactions by one or more of: adjusting a pressure of the gas mixture introduced into the container (pressure is adjusted from 10 atm to 1 atm, pg. 17, l. 22 – pg. 18, l. 3; also taught by Godes: “Feedback parameters allow a commercially useful application of the reactor to be constructed with reaction parameters being adjusted in real time according to the dictates of energy demand on the system, changing pressure and temperature inside the reactor vessel,” ¶ 112); adjusting a temperature of the gas mixture introduced into the container; or adjusting relative proportions of the reactant gas and a carrier gas in the gas mixture introduced into the container.
Regarding claim 4, the above-described combination of Heredy with Godes teaches all the elements of the parent claim, and Godes additionally teaches wherein the container has a failsafe configuration (“flow control valve,” ¶ 40) that allows substantially only pure carrier gas into the container (the valve “may simply be turned off to stop the reaction” as described in ¶ 40). As explained above in response to claim 1, initially, only hydrogen ions are introduced into the container; shutting off the flow control valve shortly after said introduction and before providing current to the apparatus would mean that only the hydrogen in its original form would be inside the container.
Regarding claim 5, the above-described combination of Heredy with Godes teaches all the elements of the parent claim, and Heredy further discloses wherein the lattice material (G) is disposed on the inner surface and the electrically conductive material (E) is disposed on the outer surface and wherein the gas mixture (“mixture” as modified above by Godes) flows through an interior region inboard of the inner surface (as shown in Fig. 1, the gases enter through port H).
Regarding claim 6, the above-described combination of Heredy with Godes teaches all the elements of the parent claim, and Heredy further discloses wherein the lattice material (E) is disposed on the outer surface and the electrically conductive material (G) is disposed on the inner surface.
Regarding claim 7, the above-described combination of Heredy with Godes teaches all the elements of the parent claim, and Heredy further discloses wherein the lattice material (E) comprises nickel (“Suitable transition metals include … Ni,” pg. 12, l. 28 and “Plate E is made of … some other transition metal,” pg. 13, ll. 26-27), the electrically conductive material (G) comprises copper (“Plate G can be made of a common metal, such as copper,” pg. 13, ll. 28-29), and the reactant gas comprises hydrogen (“Deuterium gas,” pg. 14, l. 8).
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, 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 Nuclear Reactions. https://chem.libretexts.org/@go/page/86251
2 https://brillouinenergy.com/science-technology. Last accessed May 30, 2026.
3 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)
4 Most of the references cited in this section are in alphabetical order in the 225-page NPL document in the file 01/10/2023.
5 Temperatures for Fusion, Department of Physics and Astronomy, Georgia State University: http://hyperphysics.phy-astr.gsu.edu/hbase/NucEne/coubar.html
6 Examiner acknowledges that Applicant has stated on the record (Interview Summary in the file 08/26/2024) that the claimed invention requires no nuclear reactions of any kind, and is entirely chemical. However, as detailed in the Response to Arguments section herein, Examiner could not find support in the disclosure for any mechanism for producing heat/energy other than nuclear reactions.
7 The original Abstract 08/04/2021. Applicant submitted a new Abstract 08/06/2024 that removes reference to low-energy nuclear reactions.
8 The original Title (08/04/2021) was “Control of low energy nuclear reactions in hydrides, and autonomously controlled heat module.” Applicant changed the title to “Heat generation methods and apparatuses” in their 07/19/2024 response.
9 https://brillouinenergy.com/science-technology
10 National Nuclear Data Center: http://www.nndc.bnl.gov/nudat3 (Click the magnifying glass search tool on the top left and type 4H into the box and hit Search)
11 Atlas Physics, University of Arizona: “Hydrogen-4…decays through neutron emission with a half-life of (1.39 ± 0.10) × 10−22 seconds.” See the 6-page NPL reference in the file 01/10/2023.
12 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)).
13 These must be cited as alternatives for dependent claims 5 and 6, which recite opposite configurations from each other.
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