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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/10/2025 has been entered.
Election/Restrictions
Applicant previously elected with traverse Species A (poly(4-methyl-1-pentene) (PMP)/TPX) and Species FF (Textiles) in the reply filed on 6/28/2024.
Status of Claims
The status of the claims as filed in the submission dated 3/10/2025 are as follows:
Claims 26-80 are cancelled by the applicant;
Claims 1-25 are pending;
Claims 10-18 and 23-25 are withdrawn from consideration;
Claims 1-9 and 19-22 are being examined.
Drawings
The drawings were received on 3/10/2025. These drawings are accepted.
Specification
The amended abstract was received on 3/10/2025 and is accepted.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“selective long wave infrared emitter” in claims 1-7. The generic placeholder “emitter” coupled with the functional language of “selective long wave infrared” without reciting sufficient structure to perform the recited function. The selective long wave infrared emitter will be interpreted as a layer of plastic, a layer of polymer resin, a layer of an inorganic dielectric material; poly(4-methyl-1-pentene), poly(vinyl fluoride), polypropene, biaxially oriented poly(ethene terephthalate), a thin film of silicon dioxide, a thin film of silicon monoxide, a thin film of silicon nitride, a thin film of paint resin based on poly(methyl methacrylate), a thin film of paint resin based on poly(dimethylsiloxane) (PDMS), textiles, or any of the combinations thereof and equivalents (As outlined the applicants disclosure).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
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 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 1-9, 19, and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Van Overmeere (US2018/0244928A1, as cited in the IDS and hereinafter referred to as Van).
Re Claim 1. Van teaches a selective long wave infrared (LWIR) emitter (100b comprises numerous layers of coatings) comprising (Figures 1A-D):
an infrared emissive material (100b) configured for an average emittance greater than 0.7 in long-wave infrared (LWIR) wavelengths (Figure 4A illustrates an average emittance of greater than 0.7 in the LWIR wavelengths based on the peaks of each material; Paragraphs 6-7, 48-55, 68-71, 93), and
an average emittance less than 0.4 in a first wavelength range and a second wavelength range (Figure 4A illustrates an average emittance of less than 0.4 for wavelengths outside of the LWIR wavelengths; Paragraphs 6-7, 48-55, 68-71, 93);
wherein the LWIR wavelengths are between 8 μm and 13 μm, the first wavelength range is between 2.5 μm and 8 μm, and the second wavelength range is between 13 μm and 30 μm (Figures 4A-4D; Paragraphs 8, 48-55, 59-62, 68-71, 95-96); and
wherein the selective LWIR emitter is disposed on at least one surface of an object (i.e. substrate 110) and oriented to have at least a partial view of the sky and a partial view of a terrestrial feature (Figures 1A-D; Paragraphs 22, 48-55, 68-71. It is noted that the claims are directed towards an apparatus and not a method of operating. The presence of process limitations (orienting to the sky or terrestrial feature) on product claims, which product does not otherwise patentably distinguish over prior art, cannot impart patentability to the product. See MPEP 2113. Additionally, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP2114(II). The use of the emitter by directing towards the sky or terrestrial environment is intended use of the emitter that does not change the structural design of the emitter).
Re Claim 2. Van teaches the selective LWIR emitter is further configured to radiatively cool and thermoregulate by at least one of: radiative heat loss skywards into outer space in the LWIR wavelengths and radiative heat gain from a terrestrial environment in the LWIR wavelengths; and wherein the selective LWIR emitter reflectively filters thermal radiation outside the LWIR wavelengths and blocks broadband radiative heat gain or loss to a terrestrial environment and the atmosphere outside the LWIR wavelengths (Figure 1A-1D, 4A-4D; Paragraphs 6-8, 20-22, 48-62, 68-71, 93-96). The claim recites the sky and terrestrial environment in the alternative. Thus, since Van teaches cooling through interaction with the sky (as acknowledged by the applicant), the limitation is anticipated by Van. Additionally, it is noted that the claims are directed towards an apparatus and not a method of operating. The presence of process limitations on product claims, which product does not otherwise patentably distinguish over prior art, cannot impart patentability to the product. See MPEP 2113. Additionally, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP2114(II). The use of the emitter by directing towards the sky or terrestrial environment is intended use of the emitter that does not change the structural design of the emitter.
Re Claim 3. Van teaches the selective LWIR emitter exploits the atmosphere's narrowband optical transmittance to thermal radiation in the LWIR wavelengths between a terrestrial object and the sky, and exploits the atmosphere's broadband transmittance to thermal radiation between an object and surrounding terrestrial features (Figure 1A-1D, 4A-4D; Paragraphs 6-8, 20-22, 48-62, 68-71, 93-96. It is noted that the claims are directed towards an apparatus and not a method of operating. The presence of process limitations (orienting to the sky or terrestrial feature) on product claims, which product does not otherwise patentably distinguish over prior art, cannot impart patentability to the product. See MPEP 2113).
Re Claim 4. Van teaches the selective LWIR emitter is vertically oriented (Figure 1A-1D, 4A-4D; Paragraphs 6-8, 20-22, 48-62, 68-71, 93-96; The orientation of the LWIR emitter is intended use of the emitter. It has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP2114(II). Additionally, the emitter is three dimensional, thus a portion of the emitter is “vertically oriented”.)
Re Claim 5. Van teaches the selective LWIR emitter has better cooling efficiency in warm weather and better heating efficiency in cold weather than a broadband thermal emitter (Figure 1A-1D, 4A-4D; Paragraphs 6-8, 20-22, 48-62, 68-71, 93-96. It is noted that the claims are directed towards an apparatus and not a method of operating. The presence of process limitations (orienting to the sky or terrestrial feature) on product claims, which product does not otherwise patentably distinguish over prior art, cannot impart patentability to the product. See MPEP 2113).
Re Claim 6. Van teaches the selective LWIR emitter is cooler than a broadband thermal emitter in warm weather (Figure 1A-1D, 4A-4D; Paragraphs 6-8, 20-22, 48-62, 68-71, 93-96. It is noted that the claims are directed towards an apparatus and not a method of operating. The presence of process limitations (orienting to the sky or terrestrial feature) on product claims, which product does not otherwise patentably distinguish over prior art, cannot impart patentability to the product. See MPEP 2113).
Re Claim 7. Van teaches the selective LWIR emitter is warmer than a broadband thermal emitter in cold weather (Figure 1A-1D, 4A-4D; Paragraphs 6-8, 20-22, 48-62, 68-71, 93-96. It is noted that the claims are directed towards an apparatus and not a method of operating. The presence of process limitations (orienting to the sky or terrestrial feature) on product claims, which product does not otherwise patentably distinguish over prior art, cannot impart patentability to the product. See MPEP 2113).
Re Claim 8. Van teaches the selective LWIR emitter is a plastic, a polymer resin, or an inorganic dielectric material (Figure 1A-1D, 4A-4D; Paragraphs 56, 71-73).
Re Claim 9. Van teaches the selective LWIR emitter is poly(4-methyl-1-pentene), poly(vinyl fluoride), polypropene, biaxially oriented poly(ethene terephthalate), a thin film of silicon dioxide, a thin film of silicon monoxide, a thin film of silicon nitride, a thin film of paint resin based on poly(methyl methacrylate), a thin film of paint resin based on poly(dimethylsiloxane) (PDMS), or any of the combinations thereof (Figure 1A-1D, 4A-4D; Paragraphs 56 teaches poly(methyl methacrylate), Paragraph 71-73).
Re Claim 19. Van teaches the selective LWIR emitter is a textile (Figure 1A-1D, 4A-4D; Paragraphs 6-8, 20-22, 48-62, 68-71, 93-96; Paragraphs 22 and 50 in particular teach the substrate can be “a flexible tarp…tents, umbrellas, blankets”, wherein those components are considered textiles).
Re Claim 21. Van teaches the textile is placed on a heat-reflective textile (Figures 1A-1D, 4A-4D; Paragraphs 58-62 teaches the substrate can comprise a solar reflector layer 120, wherein solar reflector is considered a “heat-reflective textile”).
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Van Overmeere (US2018/0244928A1, as cited in the IDS and hereinafter referred to as Van) in view of Yang (US2017/0248381A1, as previously cited)
Re Claim 20. Van teaches numerous materials (Paragraphs 56, 71-73) but fails to specifically teach the textile is a polypropene fabric or a poly(4-methyl-1-pentene) fabric.
However, Yang teaches the textile is a polypropene fabric or a poly(4-methyl-1-pentene) fabric (Figures 4A-4E, 13A-C, 14; Paragraphs 11-12, 95-98).
Therefore, in view of Yang teaching, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to select polypropene fabric or a poly(4-methyl-1-pentene) fabric in order to reduce solar absorption while maintaining a high emissivity (Yang Paragraph 95). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to select polypropene fabric or a poly(4-methyl-1-pentene) fabric, 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 matter of obvious design choice. See MPEP 2144.07.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Van Overmeere (US2018/0244928A1, as cited in the IDS and hereinafter referred to as Van) in view of Rankin (US5564568, as previously cited).
Re Claim 22. Van teaches numerous materials (Paragraphs 56, 71-73) but fails to specifically teach the heat-reflective textile is aluminized rayon.
However, Rankin teaches a multi-layer thermal regulation device (16) wherein the heat-reflective textile is aluminized rayon (Figures 1-2; Column 2 lines 55-67, Column 3 lines 1-11). Rankin teaches the aluminized rayon will reduce solar heating while providing a flexible and rugged construction (Column 3 lines 7-11).
Therefore, in view of Rankin's teaching, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to select the heat-reflective textile of aluminized rayon in order to reduce solar heating while providing a flexible and rugged construction (Rankin Column 3 lines 7-11). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to select aluminized rayon as the heat-reflective textile, 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 matter of obvious design choice. See MPEP 2144.07.
Response to Arguments
Applicant's arguments filed 3/10/2025 have been fully considered but they are not persuasive.
Applicant argues on pages 2-4 of the reply that “Van teaches greater than 0.85 across all of the ranges”. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., emittance must be above or below a specific value for a given wavelength range) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The applicant is arguing that Van teaches the selective LWIR emitter teaches emittance greater than 0.85 across all of the wavelength ranges. However, the claims do not preclude emittance values greater than 0.4 in the 2.5µm-8µm and 13µm-30µm wavelengths. Rather, the claims require “an average emittance less than 0.4”. Thus, the presence of peaks greater than 0.85 in the first and second wavelengths does not negate the fact that the average emittance in these ranges is less than 0.4. Figure 4A of Van illustrates that the average emittance is below 0.4 in the 2.5µm-8µm and 13µm-30µm wavelengths and above 0.7 in the 8µm-13µm wavelengths. Therefore, the applicants’ arguments are not persuasive.
Applicant argues on page 4-5 of the reply that “Van does not teach blocking of broadband radiative heat gain or loss to a terrestrial environment of the Instant Application” and “In contrast, Van teaches cooling through interaction with the sky”. Claim 2 has been amended to recite “the selective LWIR emitter is further configured to radiatively cool and thermoregulate by at least one of: radiative heat loss skywards into outer space in the LWIR wavelengths and radiative heat gain from a terrestrial environment in the LWIR wavelengths”, wherein the claim recites the sky and terrestrial environment in the alternative as wells as the radiative heat loss and radiative heat gain in the alternative. Thus, since Van teaches cooling through interaction with the sky (as acknowledged by the applicant), the limitation is anticipated by Van. Additionally, it is noted that the claims are directed towards an apparatus and not a method of operating. The presence of process limitations on product claims, which product does not otherwise patentably distinguish over prior art, cannot impart patentability to the product. See MPEP 2113. Additionally, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP2114(II). The use of the emitter by directing towards the sky or terrestrial environment is intended use of the emitter that does not change the structural design of the emitter.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRAVIS C RUBY whose telephone number is (571)270-5760. The examiner can normally be reached M-F: 9AM-5PM.
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/TRAVIS RUBY/Primary Examiner, Art Unit 3763
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