DETAILED ACTION
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 4-5, 8-12, 14-26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fuhse et al. (US 2012/0319395).
In respect to claims 1, 4, and 18, Fuhse et al. disclose a security element comprising: at least a first region ¾ with structures (micromirrors) 9 which reflect an image motif in different spatial regions to form a “moving image” which changing with viewing angle and/or light source angle (0097-0098; Figs. 1 & 3) (additionally moving image Figs. 8a-9c is another embodiment); wherein an optical effect layer formed of a thin-layer element 18 covers the structures 8 (Fig. 6). The thin-layer element may be formed over only part of the surface (0026). Fuhse et al. disclose that the reflective layer 12 is optional, as “[they] can have a reflection-enhancing, in particular reflective, coating” (0024), and further more specifically disclose that the thin-layer element 18 may be either “on the upper side 8 [of the structures] or on the reflective coating 12” (0102). The thin-layer element comprises a spacer (“dielectric”) layer 13 and an absorber (“upper metal layer”) 14, of which the spacer 13 may be directly applied to the structures, thus forming a sequence of: structures – spacer layer – absorber layer.
In respect to the amended subject matter, Fuhse et al. disclose the claimed limitations for the reasons stated above, and additionally disclose that the thin-layer element may comprise an absorber layer – spacer layer – absorber layer structure (0029). The thin-layer element can be directly applied to the structure as detailed above.
In respect to claims 5 and 23, the claimed structure cannot be ascertained for reasons detailed in the 35 USC 112 rejection above, however, Fuhse et al. disclose the claims as best can be determined, as they further disclose an optional reflective layer 12 (Fig. 6).
In respect to claims 8, 11, and 21, Fuhse et al. disclose that the security element may further comprise luminescent substances (“remitting electromagnetic waves”), which as best can be construed by the Examiner in consulting the Specification, as a “optically non-linear layer”.
In respect to claims 9-10, and 15, Fuhse et al. disclose the thin-layer element comprises at least an absorber (partially transparent metal) layer 14, at least one spacer layer 13 which is a dielectric, and a reflection layer 12 (0102; Fig. 6). Although indefinite and drawn to a product-by-process, Fuhse et al. disclose that the layers may be vapor-deposited (0102); the thin-element layer results in a color-shifting layer (0103).
In respect to claim 12, Fuhse et al. disclose a carrier layer which may be PET (0093).
In respect to claims 14, 16-17, and 24-26, Fuhse et al. disclose that the absorber layer and/reflection layer may be aluminum, chromium, etc. (0024) and the dielectric layer (spacer layer) may be ZnS (among others).
In respect to claims 19 and 22, Fuhse et al. disclose a lacquer layer 9 which may also be construed as the “carrier layer” or alternately an “additional layer”, wherein the structures are embossed therein (0059; Fig. 6).
In respect to claim 20, the “further layer” lacks proper antecedent basis and thus the thickness being referred to is completely indefinite. Regardless, Fuhse et al. disclose several ranges of lacquer, which may be construed as a “further layer” having thicknesses in the claimed ranges (0028).
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 13, 14, and 17, are rejected under 35 U.S.C. 103 as being unpatentable over Fuhse et al. (US 2012/0319395).
In respect to claim 13, Fuhse et al. do not explicitly disclose a thickness of the carrier layer of 5 – 1000 µm, however such a selection within the extensive range would have been obvious since, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984). There is absolutely no specificity to a range of 200x. Thicknesses in this range are standard for banknotes (one of the uses of Fuhse et al.).
In respect to claims 14 and 17, Fuhse et al. seem to suggest that the metal layers which form the absorber and reflection layers may be the metals listed however, use of any of the metals claimed would be obvious as the thin-layer element comprises a metal-dielectric-metal (0029). The selection of any known metal would be obvious, as the only constraint is a higher refractive index than the dielectric layer. It would have been obvious to one having ordinary skill in the art at the time the invention was made to provide the claimed metals as the absorber/reflection layer, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Response to Arguments
Applicant's arguments filed 01/28/26 have been fully considered but they are not persuasive.
The applicant contends that Fuhse et al. fail to disclose that the thin-layer element may comprise, from the structure, an absorber – spacer [dielectric] – absorber configuration, however, this is explicitly stated in (0029). The paragraph does not necessitate a reflective layer (thus direct contact with the structures and the absorber layer), and the reflective layer is further deemed optional as previously indicated in the Non-Final Action.
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 KYLE ROBERT GRABOWSKI whose telephone number is (571)270-3518. The examiner can normally be reached M-Th 8am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Daniel Troy, can be reached at 571-270-3742. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE R GRABOWSKI/Primary Examiner, Art Unit 3637