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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on June 30, 2025 complies with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Arguments
Applicant’s arguments, see remarks, filed August 28, 2025, with respect to claim objections and claim rejections under 112 and prior art rejections based on Shinozaki have been fully considered and in combination with the amendments are persuasive. Regarding Shinozaki the examiner was persuaded that Shinozaki failed to disclose three electrochromic materials each having a different color. The claim objections and claim rejections under 112 and prior art rejections based on Shinozaki have been withdrawn.
Applicant's arguments filed August 28, 2025 have been fully considered but they are not persuasive.
Regarding arguments centered on Noh (and/or Cassidy or Yashiro) failing to disclose organic electrochromic materials, the examiner is unpersuaded. Applicant indicates that the example in paragraph [0048] with “an electrochromic material” mixed with a (non-electrochromic) polymer is not an organic electrochromic material and suggests the only EC material that can be mixed with a polymer is the inorganic particle discussed in paragraph [0047]. The examiner agrees that inorganic electrochromic particles (e.g. WO3) mixed with a non-electrochromic polymer (e.g. PVA) would not read on the claimed organic EC material. However, the examiner respectfully notes paragraph [0048] offers one possibility of an EC material mixed with a polymer and does not “clearly” indicate that the EC material is necessarily inorganic nanoparticles. Regardless, paragraph [0046] explicitly states the EC material may be organic. Further paragraph [0046] list several possible organic EC materials, which substantially laps applicant’s list of possible organic EC materials. Just because the prior has other options, e.g. inorganic materials, does not lessen the disclosure of organic EC materials. It has been held “[a] reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.” Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See MPEP 2123.
Regarding arguments centered on Noh (and/or Cassidy or Yashiro) failing to disclose “said first subpixel comprises a first organic electrochromic material, wherein said second subpixel comprises a second organic electrochromic material, and wherein said third subpixel comprises a third organic electrochromic material, said first, second and third organic electrochromic materials are different organic materials having different colors;” the examiner is unpersuaded. Noh discloses three different color pixels (e.g. 230R, 230G & 230B). Noh discloses the electrochromic material can be organic and provides a list of several organic EC materials, as discussed above. And it would be inherent that the three different color pixels would have different material composition – because if they were the same composition the would be the same color.
Regarding applicant’s statement that “Noh does not disclose a full-color EC device in an enabling manner” the examiner is unpersuaded. As set forth below, Noh discloses a device with all of the limitations required by, at least, claim 1. When the reference relied on expressly anticipates or makes obvious all of the elements of the claimed invention, the reference is presumed to be operable/enabling. "Consistent with the statutory framework and our precedent, we therefore hold that, during patent prosecution, an examiner is entitled to reject claims as anticipated by a prior art publication or patent without conducting an inquiry into whether or not that prior art reference is enabling. As long as an examiner makes a proper prima facie case of anticipation by giving adequate notice under § 132, the burden shifts to the applicant to submit rebuttal evidence of nonenablement." In re Antor Media Corp., 689 F.3d at 1289, 103 USPQ2d at 1559. See MPEP 2121. In this case, the examiner was unpersuaded that that one of ordinary skill in the art would need to engage in undue experimentation to make the device disclosed by Noh that reads on applicant’s claimed invention.
Regarding arguments centered on Noh (and/or Cassidy or Yashiro) failing to disclose electrodeposition and electropolymerization of the EC materials, the examiner is unpersuaded. Electrodeposition and electropolymerization are process steps. The claim is directed to a device, a.k.a. a product. It has been held that the presence of process limitations in a product claim, which product does not otherwise patentably distinguish over the prior art, cannot impart patentability to the product. In re Stephens 135 USPQ 656 (CCPA 1965). Furthermore, the patentability of a product does not depend upon its method of production. If the product in a product by process claim is the same as or obvious from a product of the prior art, then the claim is unpatentable even though the prior art product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed Cir 1985). See MPEP 2113. In this case, electrodeposition and electropolymerization do not have any patentable weight.
Applicant’s further arguments directed to a means of making are directed to Group II, claims 11-17 and 19, drawn to a method of depositing an organic EC material on pixel electrodes of an electrochromic device, withdrawn without traverse, are considered moot.
The examiner has no comment regarding examination at other patent offices.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 9-10 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claim 9 (dependent of 7) “wherein said one or more selected from the group consisting of” raises clarity issues. It is unclear if applicant is referring to “said one or more selected from the group” of ion conducting material introduced in claim 1 or “said one or more selected from the group” of electrodeposited organic polymer electrochromic material listed in claim 7 (assumed) or “said one or more selected from the group” of electrodeposited organic polymer electrochromic material listed in claim 8 or some other Markush group. See below for an interpretation.
Further regarding claim 9 the Markush group ends with “… and electrodeposited pyrol further comprising one or more substituents, …” raising clarity issues. It is unclear if only the pyrol material comprises one or more substituents or if all of the materials further comprise the one or more substituents, i.e. a derivative (assumed). See below for an interpretation.
Regarding claim 10 (dependent of 9) “wherein said one or more substituents are selected from …” reenforces the above clarity issues. Since it depends on claim 9 it therefore has the same deficiencies and it remains unclear if the substituents are only required for the pyrol material or any of the materials.
The examiner suggests and for purposes of examination will use in the body of claim 9: “wherein said electrodeposited organic polymer electrochromic material chosen from said one or more selected from the group is a derivative comprising one or more substituents, which substituents are selected independently from organic substituents comprising from 1-50 carbons and 0-20 heteroatoms.”
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, 3, 6-8 and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Noh et al. 2010/0202035, of record.
Regarding claim 1 Noh discloses a full-color electrochromic device (title e.g. electrochromic device 1 including electrochromic layer 230 comprising red portion 230R, green portion 230G & blue portion 230B) comprising: a plurality of pixels (e.g. combination of 230 & patterned second electrode 220), wherein each pixel comprises first, second and third subpixels (e.g. 230R, 230G, 230B and respective portions of 220), wherein each subpixel comprises a subpixel electrode (e.g. portions of 220) and an organic electrochromic material (paragraph [0046] “electrochromic material may be … an organic material ... for example, viologen, a pyridine-based compound, an aminoquinone-based compound, a rare earth element compound, phthalocyanine, a ruthenium-based compound, a leuco dye-based compound or a polymer-based electrochromic material”), wherein said first subpixel (e.g. 230R) comprises a first organic electrochromic material (paragraph [0046]), wherein said second subpixel (e.g. 230G) comprises a second organic electrochromic material (paragraph [0046]), and wherein said third subpixel (e.g. 230B) comprises a third organic electrochromic material (paragraph [0046]), said first, second and third organic electrochromic materials are different organic materials (inherent since they have red, green and blue coloring) having different colors (paragraphs [0044-45] e.g. red, green & blue); a first substrate (e.g. second substrate 210) comprising an active matrix comprising electrically conducting lines and active components (inter alia paragraph [0044] discusses patterned electrode providing power to switch individual pixels), for providing electrical current to said subpixel electrodes (axiomatic), wherein an active component is provided for each of said subpixels (e.g. 230R, 230G & 230B), wherein one active component is electrically connected to one subpixel electrode (inter alia paragraph [0044]), and wherein a predetermined subpixel electric potential is established via said active component (inherent for proper operation); a second substrate (e.g. first substrate 110), wherein said first and second substrates have opposed first and second outside surfaces (e.g. see figure 1); one or more counter electrode (e.g. first electrode 120 and/or carbon nano-structured electrode layer 130) connected to said second substrate (paragraph [0035] “first electrode 120 is disposed on the first substrate 110” see figure 1); and, an ion conducting material (e.g. electrolyte layer 180 ) for transporting ions between said subpixels and said one or more counter electrode (axiomatic), wherein said ion conducting material comprises one or more selected from the group consisting of: at least one solvent comprising dissolved ions, an ionic liquid, a liquid crystal, and an ionic liquid crystal (e.g. paragraph [0050] “180 may include, for example, a solution obtained by dissolving an electrolyte salt, such as lithium salt, potassium salt, sodium salt and/or ammonium salt, in an aqueous solvent or, alternatively, a non-aqueous organic solvent ... non-aqueous solvent may include carbonates, alcohols and ethers, … ionic organic solvents of methylene carbonate, ethylene carbonate, propylene carbonate, ethylmethyl carbonate, .gamma.-butyrolactone, ethylene glycol, polyethylene glycol, and imidazolium-based ionic liquid”), wherein said ion conducting material is provided continuously within a common space (e.g. see figure 1), wherein at least said first, second and third subpixels (e.g. 230R, 230G & 230B, respectively) are provided within said common space (e.g. see figure 1) and are in contact with said ion conducting material (necessary for operation e.g. see figure 1); wherein said electrochromic device is configured to establish said predetermined subpixel electric potential between any one specific subpixel and said one or more counter electrode (necessary for device to work1), and wherein said first organic electrochromic material (e.g. 230R), said second organic electrochromic material (e.g. 230G) and said third organic electrochromic material materials (e.g. 230B) are electrodeposited (no patentable weight2) organic polymer electrochromic materials (paragraph [0046] “electrochromic material may be … an organic material ... for example, viologen, a pyridine-based compound, an aminoquinone-based compound, a rare earth element compound, phthalocyanine, a ruthenium-based compound, a leuco dye-based compound or a polymer-based electrochromic material”) obtained by electropolymerization (no patentable weight3) on said subpixel electrodes (e.g. see figure 1).
Regarding claim 3 Noh disclose the electrochromic device of claim 1, as set forth above. Noh further discloses wherein said first subpixel (e.g. 203R) comprises an organic electrochromic material (paragraph [0046]) having a red color when exposed to a particular voltage (paragraph [0044] “red portion 230R”), said second subpixel (e.g. 230G) comprises an organic electrochromic material (paragraph [0046]) having a green color when exposed to a particular voltage (paragraph [0044] “green portion 230G”), and said third subpixel (e.g. 230B) comprises an organic electrochromic material (paragraph [0046]) having a blue color when exposed to a particular voltage (paragraph [0044] “blue portion 230B”).
Regarding claim 6 Noh disclose the electrochromic device of claim 1, as set forth above. Noh further discloses wherein a plurality of pixels (e.g. 230R, 230G & 230B) is provided within said common space (see figure 1) and/or is in contact with said ion conducting material (e.g. 180).
Regarding claim 7 Noh disclose the electrochromic device of claim 1, as set forth above. Noh further discloses wherein said electrodeposited organic polymer electrochromic materials comprise one or more selected from the group consisting of: electrodeposited viologen, electrodeposited triphenylamine, electrodeposited thiophene, electrodeposited 3,4-ethylenedioxythiophene, electrodeposited pyridine, electrodeposited aniline, electrodeposited imides, electrodeposited aromatic ketones, electrodeposited anthraquinone, electrodeposited amides, electrodeposited norbornene-based compounds, electrodeposited carbazoles, electrodeposited thiocarbazoles, electrodeposited pyrol, and electrodeposited derivatives of the aforementioned (paragraph [0046] “electrochromic material may be … an organic material ... for example, viologen, a pyridine-based compound, an aminoquinone-based compound, a rare earth element compound, phthalocyanine, a ruthenium-based compound, a leuco dye-based compound or a polymer-based electrochromic material”)
Regarding claim 8 Noh disclose the electrochromic device of claim 1, as set forth above. Noh further discloses wherein said electrodeposited organic polymer electrochromic materials comprise one or more selected from the group consisting of polyviologen, polytriphenylamine, polythiophene, poly(3,4- ethylenedioxythiophene) (PEDOT), polypyridine, polypyrol, polyaniline, polyimides, polymeric aromatic ketones, polyanthraquinone, polymeric heterocycles, polyamides, polynorbornene, polycarbazoles, polythiocarbazoles and their derivatives (paragraph [0046] “electrochromic material may be … an organic material ... for example, viologen, a pyridine-based compound, an aminoquinone-based compound, a rare earth element compound, phthalocyanine, a ruthenium-based compound, a leuco dye-based compound or a polymer-based electrochromic material”).
Regarding claim 18 Noh disclose the electrochromic device of claim 1, as set forth above. Noh further discloses it lacks separation walls, parts, borders and/or regions parts for electrically separating the pixels and/or subpixels (see figure 1).
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.
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 2 is rejected under 35 U.S.C. 103 as being unpatentable over Noh et al. US Patent Application Publication 2010/0202035, of record, in view of Cassidy US Patent Application Publication 2007/0171148, of record.
Regarding claim 2 Noh disclose the electrochromic device of claim 1, as set forth above. Noh does not disclose it is comprising an insulating layer provided between said first substrate and said subpixel electrodes, wherein said subpixel electrodes are deposited on said insulating layer, wherein said active matrix comprises electrically conducting vias extending across said insulating layer, and wherein a via is provided to connect an individual active component with an individual subpixel electrode.
Cassidy teaches a similar electrochromic device (title e.g. figure 4 active matrix electrochromic device 400) including a first and second substrate (e.g. substrates 410 & 465) multiple subpixels (e.g. pixels D, E, F & G) with electrochromic materials (e.g. layer 460) of different colors (inter alia paragraph [0040] “electrochormophores that appear red, green, and blue in a reduced state and transparent in an oxidized state”) on subpixel electrodes (e.g. transparent conductor 430) attached to active components (e.g. active components 405) a counter electrode (e.g. transparent conductor 470) and an ion transporting layer (e.g. electrolyte 420); and further teaches an insulating layer (e.g. insulating layer 415) provided between said first substrate (e.g. 410) and said subpixel electrodes (e.g. 410) for the purpose of protecting the active components from the possible corrosive effects of the electrolyte (paragraph [0028]). Therefore, it would be obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention for the electrochromic device as disclosed by Noh to have an insulating layer provided between said first substrate and said subpixel electrodes, wherein said subpixel electrodes are deposited on said insulating layer, wherein said active matrix comprises electrically conducting vias extending across said insulating layer, and wherein a via is provided to connect an individual active component with an individual subpixel electrode as taught by Cassidy for the purpose of protecting the active components from the possible corrosive effects of the electrolyte.
Insofar as they are understood claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Noh et al. US Patent Application Publication 2010/0202035, of record, in view of Yashiro et al. US Patent Application Publication 2012/0154892, of record.
Regarding claims 9-10 Noh disclose the electrochromic device of claim 7, as set forth above. Noh does not disclose wherein said electrodeposited organic polymer electrochromic material chosen from said one or more selected from the group is a derivative comprising one or more substituents, which substituents are selected independently from organic substituents comprising from 1-50 carbons and 0-20 heteroatoms, as required by claim 9; or wherein said one or more substituents are selected from aliphatic and aromatic substituents, esters and amines of aliphatic and aromatic moieties, wherein in said aliphatic or aromatic substituent or moiety one or more hydrogens are optionally replaced independently by one or more selected from phosphonate (—PO(OH)2), boronic acid (—B(OH)2), —OH, —COOH, —NH.sub.2, —NO2, aminoxide —N+(R)2—O-), halogen, and —(CH2)n—Si(OR3)3, R and R3 are independently selected from C1-C10 alkyl, preferably C1-C5 alkyl, as required by claim 10.
Yashiro teaches a similar full-color electrochromic device (e.g. figure 3 display device 30 paragraph [0062] “different electrochromic compounds may be included in the electrochromic layers 13a, 13b, and 13c so as to color and decolor different colors”) where the electrochromic materials are chosen from organic polymers (inter alia paragraph [0082] “organic electrochromic compounds of azobenzene-based, anthraquinone-based, diarylethene-based, dihydroprene-based, styryl-based, styrylspiropyran-based, spirooxiazine-based, spirothiopyran-based, thioindigo-based, tetrathiafulvalene-based, terephralic acid-based, triphenylmethane-based, triphenylamine-based, naphthopyran-based, viologen-based, pyrazoline-based, phenazine-based, phenylenediamine-based, phenoxazine-based, phenothiazine-based, phthlocyanine-based, fluiran-based, fulgide-based, benzopyran-based, metallocene-based and the like, and an electro conductive polymer compound such as polyanilline, polythiophene and the like may be used”); and further teaches said electrodeposited organic polymer electrochromic material chosen from said one or more selected from the group (e.g. paragraph [0083] gives an exemplar of dipyridine-based compound, i.e. a polypyridine) is a derivative comprising one or more substituents, which substituents are selected independently from organic substituents comprising from 1-50 carbons and 0-20 heteroatoms and wherein said one or more substituents are selected from aliphatic and aromatic substituents, esters and amines of aliphatic and aromatic moieties, wherein in said aliphatic or aromatic substituent or moiety one or more hydrogens are optionally replaced independently by one or more selected from phosphonate (—PO(OH)2), boronic acid (—B(OH)2), —OH, —COOH, —NH.sub.2, —NO2, aminoxide —N+(R)2—O-), halogen, and —(CH2)n—Si(OR3)3, R and R3 are independently selected from C1-C10 alkyl, preferably C1-C5 alkyl (paragraph [0084] “an alkyl group having a carbon number in a range from 1 to 8 or an aryl group having a carbon number in a range from 1 to 8 and may have respective independent substituent groups ... a substituent group selected from a group consisting of COOH, PO(OH)2, and Si(OCkH2k+1)3 … an aryl group having a carbon number in a range from 2 to 20 or a heterocyclic ring and may include a substituent group”) for the purpose of having a preferred material with excellent color values (paragraph [0083]). Therefore, it would be obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention for the electrochromic device as disclosed by Noh to have said electrodeposited organic polymer electrochromic material chosen from said one or more selected from the group is a derivative comprising one or more substituents, which substituents are selected independently from organic substituents comprising from 1-50 carbons and 0-20 heteroatoms; and wherein said one or more substituents are selected from aliphatic and aromatic substituents, esters and amines of aliphatic and aromatic moieties, wherein in said aliphatic or aromatic substituent or moiety one or more hydrogens are optionally replaced independently by one or more selected from phosphonate (—PO(OH)2), boronic acid (—B(OH)2), —OH, —COOH, —NH.sub.2, —NO2, aminoxide —N+(R)2—O-), halogen, and —(CH2)n—Si(OR3)3, R and R3 are independently selected from C1-C10 alkyl, preferably C1-C5 alkyl as taught by Yashiro for the purpose of having a preferred material with excellent color values.
.Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Okada et al. US Patent Application Publication 2017/0131609; regarding an electrochromic device (title) that uses organic EC materials including derivatives (paragraphs [0058, 0060-70]).
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 George G King whose telephone number is (303)297-4273. The examiner can normally be reached 9-5.
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, Ricky Mack can be reached at (571) 272-2333. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/George G. King/Primary Examiner, Art Unit 2872 October 31, 2025
1 Prior art presumed assumed to be operable. When the reference relied on expressly anticipates or makes obvious all of the elements of the claimed invention, the reference is presumed to be operable. Once such a reference is found, the burden is on applicant to rebut the presumption of operability. In re Sasse, 629 F.2d 675, 207 USPQ 107 (CCPA 1980. Also see In re Antor Media Corp., 689 F.3d 1282, 103 USPQ2d 1555 (Fed. Cir. 2012). MPEP 2121.
2 Regarding “electrodeposited” electrodeposition is process step. The claim is directed to a device, a.k.a. a product. It has been held that the presence of process limitations in a product claim, which product does not otherwise patentably distinguish over the prior art, cannot impart patentability to the product. In re Stephens 135 USPQ 656 (CCPA 1965). Furthermore, the patentability of a product does not depend upon its method of production. If the product in a product by process claim is the same as or obvious from a product of the prior art, then the claim is unpatentable even though the prior art product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed Cir 1985). See MPEP 2113. To avoid excessive footnotes and to improve readability all further occurrences of “electrodeposited” materials will be treated the same for the same reasons.
3 Regarding “obtained by electropolymerization” is process step. The claim is directed to a device, a.k.a. a product. It has been held that the presence of process limitations in a product claim, which product does not otherwise patentably distinguish over the prior art, cannot impart patentability to the product. In re Stephens 135 USPQ 656 (CCPA 1965). Furthermore, the patentability of a product does not depend upon its method of production. If the product in a product by process claim is the same as or obvious from a product of the prior art, then the claim is unpatentable even though the prior art product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed Cir 1985). See MPEP 2113.