DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Receipt is acknowledged of the amendment filed 10/01/2025. Claims are not amended, and claims 1-5, 8-11, 13-16, and 19-22 are currently pending.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-5, 8-11, 13-16, 19-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over “Dynamically Reconfigurable High Impedance and Frequency Selective Metasurfaces Using Piezoelectric Actuators” to Mavridou et al. (hereinafter Mavridou) in view of US Pat. No. 11,243,159 to Palinski et al. (hereinafter Palinski).
Regarding claim 1, Mavridou discloses an apparatus comprising: a first substrate (dielectric substrate, Fig. 1) comprising an array (periodic structure, Fig. 1), said array comprising a plurality of different structures (Fig. 1), thereby forming an optical metasurface (e.g. Abstract); a mirror (upper surface of ground plane, Fig. 1) formed on a second substrate (ground plane, Fig. 1); and a mechanism (bender actuators, Fig. 1) arranged to move the first and second substrates relative to one another to alter a separation between the first and second substrates between a first separation distance and at least a second separation distance (distance “t” and “t + Δ t”, Figs. 1 & 2) wherein at said first separation distance said optical metasurface performs a first manipulation of incident light and at said second separation distance said optical metasurface does not perform said first manipulation of incident light (Fig. 2(a) shows variation of reflectance as a function of changing separation).
The broadest reasonable interpretation of “different structures” includes distinct structures positioned differently. The claim does not require particular differences between respective structures of the array, e.g. size, shape, angular orientation.
Mavridou discloses the claimed invention as cited above though does not explicitly disclose: an apparatus configured to manipulate incident light having at least a first wavelength, the apparatus wherein at said first separation distance said optical metasurface performs a first manipulation of said incident light and at said second separation distance said optical metasurface does not perform said first manipulation of said incident light wherein the second separation distance is more than of said first wavelength.
Palinski discloses an apparatus (Figs. 1-4, 7) configured to manipulate incident light having at least a first wavelength (at least 400nm-900nm, Fig. 7), the apparatus wherein at said first separation distance (50nm thickness of layer 6 is a separation between “an optically thick reflective film base layer 4” and “a lossy plasmonic nanoisland film top layer 8”, Fig. 7) said optical metasurface (“a lossy plasmonic nanoisland film top layer 8”, Figs. 1-4) performs a first manipulation of said incident light (50nm reflection spectrum, Fig. 7) and at said second separation distance (160nm, Fig. 7; “reflection spectra of three examples sensors with various middle layer thicknesses according to the present subject matter”) said optical metasurface does not perform said first manipulation of said incident light (160nm reflection spectrum is not the 50nm reflection spectrum, Fig. 7) wherein the second separation distance is more than of said first wavelength (160nm > (400nm, 500nm, 500nm)/4, Fig. 7). See columns 3-12.
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to provide the claimed separation as taught by Palinski with the system as disclosed by Mavridou. The motivation would have been to effectuate the reflection spectrum change shown in Fig. 7 in light emission and sensor applications (col. 1).
Regarding claims 2 and 13, Mavridou discloses said first substrate has a first side and a second side (Fig. 1), said second substrate being disposed to face said first side and said incident light being incident on said second side (Fig. 1).
Regarding claims 3 and 14, Mavridou discloses said optical metasurface comprises a plasmon antenna array configured to form a gap surface plasmon metasurface when the separation between the first and second substrates is such that the optical metasurface performs a manipulation of incident light (Fig. 1). This conditional limitation is not required by the claim except when the claimed condition on separation is met. Mavridou discloses nanostructure antennas in a periodic array on a dielectric substrate separated from a ground plane and thus discloses a structure capable of the conditional function.
Regarding claims 4 and 15, Mavridou discloses said optical metasurface is configured to act as a blazed grating when the separation between the first and second substrates is such that the optical metasurface performs a manipulation of incident light (Fig. 1). This conditional limitation is not required by the claim except when the claimed condition on separation is met. Mavridou discloses nanostructure antennas in a periodic array on a dielectric substrate separated from a ground plane and thus discloses a structure capable of the conditional function.
Regarding claims 5, 16, and 22, Mavridou discloses at said second separation distance said optical metasurface performs a second manipulation of incident light (Fig. 2(a) shows variation of reflectance as a function of changing separation).
Regarding claims 8 and 19, Mavridou discloses the second substrate is provided by a Micro-electromechanical systems (MEMS) arrangement such that the second substrate is translatable upon application of a voltage (abstract & Fig. 2).
Regarding claims 9 and 20, Mavridou discloses a feedback mechanism to regulate said separation distance and/or a degree of planarity of said second substrate (the reflection magnitude spectrum is the information by which distance may be regulated).
Regarding claims 10 and 21, Mavridou discloses an optical system comprising a light source (implied by reflection magnitude spectrum of Fig. 2(a)) arranged to emit light having at least a first wavelength onto an apparatus (Fig. 2(a)), the apparatus comprising: a first substrate (dielectric substrate, Fig. 1) comprising a nanostructured surface (periodic structure, Fig. 1), thereby forming an optical metasurface (e.g. Abstract); a mirror (upper surface of ground plane, Fig. 1) formed on a second substrate (ground plane, Fig. 1); and a mechanism (bender actuators, Fig. 1) arranged to move the first and second substrates relative to one another to alter a separation between the first and second substrates between a first separation distance and at least a second separation distance wherein at said first separation distance said optical metasurface performs a first manipulation of said light (distance “t” and “t + Δ t”, Figs. 1-2) and at said second separation distance said optical metasurface does not perform said first manipulation of said light (Fig. 2(a) shows variation of reflectance as a function of changing separation).
Mavridou discloses the claimed invention as cited above though does not explicitly disclose: an apparatus configured to manipulate incident light having at least a first wavelength, the apparatus wherein at said first separation distance said optical metasurface performs a first manipulation of said incident light and at said second separation distance said optical metasurface does not perform said first manipulation of said incident light wherein the second separation distance is more than of said first wavelength.
Palinski discloses an apparatus (Figs. 1-4, 7) configured to manipulate incident light having at least a first wavelength (at least 400nm-900nm, Fig. 7), the apparatus wherein at said first separation distance (50nm thickness of layer 6 is a separation between “an optically thick reflective film base layer 4” and “a lossy plasmonic nanoisland film top layer 8”, Fig. 7) said optical metasurface (“a lossy plasmonic nanoisland film top layer 8”, Figs. 1-4) performs a first manipulation of said incident light (50nm reflection spectrum, Fig. 7) and at said second separation distance (160nm, Fig. 7; “reflection spectra of three examples sensors with various middle layer thicknesses according to the present subject matter”) said optical metasurface does not perform said first manipulation of said incident light (160nm reflection spectrum is not the 50nm reflection spectrum, Fig. 7) wherein the second separation distance is more than of said first wavelength (160nm > (400nm, 500nm, 500nm)/4, Fig. 7). See columns 3-12.
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to provide the claimed separation as taught by Palinski with the system as disclosed by Mavridou. The motivation would have been to effectuate the reflection spectrum change shown in Fig. 7 in light emission and sensor applications (col. 1).
Regarding claim 11, Mavridou discloses the first separation distance is less than 1/10 of said first wavelength (t = 0.6mm is less than one-tenth of the wavelength at a frequency of 30-65 GHz, see Fig. 2(a)).
Response to Arguments
Applicant's arguments filed 7/01/2025 have been fully considered but they are not persuasive.
On pages 2-3, Applicant argues “According to the Examiner, because these gap sizes can be % the wavelength of incident light, it would have been obvious to modify the apparatus of Palinski to change the separation distance from 50 nm to 160 nm, for incident light of 400 nm to 900 nm” and “[t]he problem with this conclusion is that the Mavridou apparatus cannot achieve a separation distance that is even remotely close to 50 nm to 160 nm, nor is there a reason to attempt to achieve such a separation distance”. In response to applicant's argument that the Mavridou apparatus cannot achieve the separation distances disclosed by Palinski, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). As stated by Mavridou, design of the tunable metasurface reflectors is recognized to be geometry dependents for both the metasurface structure and the underlying actuator structure: “dimensions and the geometry of the structure have been chosen so that a reflection phase of zero is obtained at around 15 GHz with a fast variation of the reflection phase with frequency which makes the structure more sensitive to changes of the cavity distance”. The mode of operation and use of actuators in Mavridou has differences in comparison to the mode of operation and use of actuators in Palinski. While the Mavridou embodiment relies on bending mechanics to effectuate displacement (“change in the biasing voltage of the bender actuators is translated to a bending of the actuators and thus a vertical displacement of the surface with respect to the ground plane [Fig. 1(a)]”), Palinski relies on compression and expansion (“middle layer 6 is “active” or “stimulus-responsive” in that the middle layer 6 has a thickness d and refractive index n that changes (e.g., the thickness d expands, see FIG. 4) upon exposure to a predetermined stimulus… dimension of the middle layer 6 may be a thickness (d) of the middle layer 6 as measured between the top layer 8 and the base layer 4, but it may also be a width, length, or volume of the middle layer 6”). From Mavridou and Palinski directly and also from that which would have been understood by a person having ordinary skill in the art, the geometry of the devices themselves and the geometry of actuation are result-effective variables that have been evidenced as obvious to modify in view of the art cited in rejections above. The rejection does not rely upon evidence that the absolute values of cavity adjustments in Palinski would have been obvious to directly incorporate into the structure of Mavridou, but rather the magnitude of the claimed separation (effectuated by compression/expansion in Palinski) would have been obvious in view of Mavridou and Palinski.
Further, Applicant argues “Palinski's "large-area, actively tunable asymmetric Fabry-Perot cavities" have no apparent relevance to the optical metasurface apparatuses of either Mavridou or the claimed invention, either structurally or functionally”. Both Mavridou and Palinski are directed to tunable optical metasurface devices that control the phase out output light by actuating the metasurface relative to reflective surfaces. A person having ordinary skill in the art would understand this to be relevance in both structure and function.
Conclusion
THIS ACTION IS MADE FINAL. 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 CHRISTOPHER J STANFORD whose telephone number is (571)270-3337. The examiner can normally be reached 8AM-4PM PST M-F.
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/CHRISTOPHER STANFORD/Primary Examiner, Art Unit 2872