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 Arguments
Applicant’s arguments (“Remarks”) of February 13, 2026, responsive to the Non-Final Office Action of November 14, 2025 (hereinafter “Office Action”), have been fully considered, but are not persuasive.
Applicant argues that the cited references Itoh and Glenn each fail to disclose all of the limitations of independent Claim 1 (see pages 8-10 of the Remarks of February 13, 2026). Specifically, Applicant argues that cited references Itoh and Glenn each fail to disclose the claimed “metallic absorbing layer extending across the amorphous-phase TiO2 [titanium dioxide] dielectric layer” (Ibid).
Cited Reference Itoh
-----“At Once Envisaged”-----
With respect to the Itoh reference, Applicant appears to assert that the Office must show that the claimed metallic absorbing layer would be “at once envisaged” (i.e., immediately envisaged) by a person of skill in the art (see pages 8-9 of the Remarks of February 13, 2026). The “at once envisaged” standard is found in MPEP § 2131.02, Section III, citing Kennametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 1381; 114 USPQ2d 1250, 1254 (Fed. Cir. 2015).
However, the question of whether a cited reference anticipates a claim limitation based upon the claim limitation being “immediately envisaged” by a person of skill in the art, comes into play when the reference does not expressly spell out the limitation(s) as arranged or combined as in the claim (see MPEP § 2131.02, Section III, and its discussion of Kennametal).
In the present case, the cited reference Itoh does, in fact, expressly spell out the claimed metallic absorbing layer, as explained on page 3 of the Office Action. Specifically, the Office Action identifies Itoh’s uppermost layer of support material 2 as the claimed “metallic absorbing layer” (see paragraphs [0038]-[0041] and FIGS. 1a, 1b of Itoh, but see especially FIG. 1b of Itoh). The Office Action further notes that Itoh’s support material 2 may be metal, such as gold, silver, or titanium, as expressly spelled out in paragraph [0040] of Itoh, which states: “gold, silver, titanium or other oxidation-resistant metals can give coloring if their occupied surface area is small, so they can also be used as the materials for the aforementioned thin-film layers of support material”.
Metallic layers such as gold, silver, and titanium will necessarily absorb some light that is incident upon them, and thus may be identified as “metallic absorbing layers”. The Office further notes that metallic layers such as gold, silver, and titanium will necessarily absorb heat from electromagnetic radiation that is incident upon them, in addition to absorbing heat from adjacent layers, and thus may also be identified as “metallic absorbing layers” for this reason.
The Office speculates that Applicant may be asserting that the disclosed metals of Itoh do not meet some minimum level of absorption contemplated by Applicant. However, it has been held that during patent examination, the pending claims must be given their broadest reasonable interpretation consistent with the specification. See MPEP §§ 2111 and 2111.01, Section I, citing Phillips v. AWH Corp., 415 F.3d 1303, 1316; 75 USPQ2d 1321, 1329 (Fed. Cir. 2005).
In the present case, the broadest reasonable interpretation of “metallic absorbing layer” is a layer comprising metal which is capable of absorption, e.g., absorption of light, heat, or chemical(s). Applicant does not appear to have provided a special definition of the term “metallic absorbing layer” in the specification, nor does Applicant appear to have expressly disclaimed or disavowed the claim scope in a way which would narrow the interpretation of the term “metallic absorbing layer” (see, e.g., MPEP § 2111.01, Section IV). Therefore, the Office’s interpretation of “metallic absorbing layer” as a layer comprising metal which is capable of absorption, e.g., absorption of light, heat, or chemical(s), is an appropriate interpretation, and thus the gold, silver, or titanium of Itoh’s support material 2 (see paragraph [0040] and FIG. 1b of Itoh) qualifies as the claimed metallic absorbing layer.
Because Itoh’s support material 2 qualifies as the claimed metallic absorbing layer, Itoh expressly spells out this limitation, and thus the Office’s rejection of the claim can be made without the need for a person of skill in the art to “immediately envisage” such limitation.
-----“Function”, “Using”, “Absorber Material”-----
Applicant further argues that Itoh’s support material 2 would not be recognized or envisaged to “function” as a metallic absorber, nor would one recognize or envisage “using” an “absorber material” as Itoh’s support material 2 (see page 9 of the Remarks of February 13, 2026).
However, with respect to the concept of an absorber “function”, it is unknown what type of function or what degree of function Applicant is referring to that is supposedly not disclosed by Itoh. As explained above, Itoh’s disclosed gold, silver, and titanium layers are capable of absorbing at least some light and heat, and thus are capable of providing an absorber function. Applicant’s Claim 1 does not appear to require more than this.
With respect to the concept of “using” an “absorber material”, it is unknown what type of materials are included or excluded by the term “absorber material”. Applicant does not appear to have provided a special definition of the term “absorber material” in the specification, and thus it is unknown how or why Itoh’s disclosed gold, silver, and titanium layers do not qualify as “absorber materials”.
-----Non-Metallic Materials are the Primary/Preferred Choice of Itoh-----
Applicant further argues that with respect to the support material 2 of FIG. 1b of Itoh [corresponding to the claimed “metallic absorbing layer”], Itoh expresses a preference for non-metallic materials (see page 9 of the Remarks of February 13, 2026, citing to paragraphs [0038], [0039] of Itoh).
The Office acknowledges that Itoh appears to disclose that support material 2 is generally formed of non-metallic material, and the selection of one of several listed metallic materials is framed as a possible alternate choice of material. However, it has been held that disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or non-preferred embodiments. See MPEP § 2123, citing In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
In the present case, Itoh’s disclosure of non-metallic materials as a preferred choice or primary choice of material for support material 2 does not negate the clear disclosure of metallic materials such as gold, silver and titanium for support material 2 (see paragraphs [0038]-[0041] and FIGS. 1a, 1b of Itoh). Therefore, Itoh’s uppermost layer of support material 2 does satisfy the requirements of the claimed metallic absorbing layer, and the claims remain rejected based upon the Itoh reference.
Cited Reference Glenn
With respect to the Glenn reference, the Office Action identified Glenn’s “Ag [silver] layer 4” as corresponding to the claimed “metallic absorbing layer” (see pages 6-8 of the Non-Final Office Action of November 14, 2025, citing to paragraphs [0026], [0036] and TABLE 1 of Glenn). Applicant argues that Glenn’s “Ag [silver] layer 4” is not a disclosure of the claimed “metallic absorbing layer” because Glenn does not identify or characterize silver as an absorbing material, nor does Glenn disclose absorption as a function of the silver layer (see page 10 of the Remarks of February 13, 2026). Applicant further points out that the silver of Glenn is selected for its desired trait of reflection of infrared radiation (Ibid).
The Office speculates that Applicant may be asserting that the silver of Glenn’s “Ag [silver] layer 4” does not meet some minimum level of absorption contemplated by Applicant. However, it has been held that during patent examination, the pending claims must be given their broadest reasonable interpretation consistent with the specification. See MPEP §§ 2111 and 2111.01, Section I, citing Phillips v. AWH Corp., 415 F.3d 1303, 1316; 75 USPQ2d 1321, 1329 (Fed. Cir. 2005).
In the present case, the broadest reasonable interpretation of “metallic absorbing layer” is a layer comprising metal which is capable of absorption, e.g., absorption of light, heat, or chemical(s). Metallic layers such as silver will necessarily absorb some light that is incident upon them, and thus may be identified as “metallic absorbing layers”. The Office further notes that metallic layers such as silver will necessarily absorb heat from electromagnetic radiation that is incident upon them, in addition to absorbing heat from adjacent layers, and thus may also be identified as “metallic absorbing layers” for this reason.
Applicant does not appear to have provided a special definition of the term “metallic absorbing layer” in the specification, nor does Applicant appear to have expressly disclaimed or disavowed the claim scope in a way which would narrow the interpretation of the term “metallic absorbing layer” (see, e.g., MPEP § 2111.01, Section IV). Therefore, the Office’s interpretation of “metallic absorbing layer” as a layer comprising metal which is capable of absorption, e.g., absorption of light, heat, or chemical(s), is an appropriate interpretation, and thus the silver of Glenn’s “Ag [silver] layer 4” (see paragraphs [0026], [0036] and TABLE 1 of Glenn) qualifies as the claimed metallic absorbing layer.
With respect to the concept of “absorption as a function”, it is unknown what qualifies as an absorption function in terms of, e.g., the degree/percentage of absorption, or which wavelengths or wavelength ranges of light/radiation, must be absorbed and to what extent. As explained above, Glenn’s disclosed silver layers are capable of absorbing at least some light and heat, and thus are capable of providing an absorber function. Applicant’s Claim 1 does not appear to require more than this.
With respect to the concept of an “absorber material”, it is unknown what type of materials are included or excluded by the term “absorber material”. Applicant does not appear to have provided a special definition of the term “absorber material” in the specification, and thus it is unknown how or why Glenn’s disclosed silver layer does not qualify as an “absorber material”. The fact that silver may reflect a greater percentage of light compared to its absorption of light does not negate the fact that silver will absorb at least some light, and thus may be identified as an “absorber material”.
Therefore, Glenn’s “Ag [silver] layer 4” does satisfy the requirements of the claimed metallic absorbing layer, and thus the claims remain rejected based upon the Glenn reference.
Obviousness-Type Rejections
Applicant further argues against the 35 USC 103 (obviousness) rejections of Claims 25, 27 and 28 (see pages 11-13 of the Remarks of February 13, 2026). Specifically, with respect to Claim 25, Applicant argues that cited reference Boudreau fails to remedy the alleged deficiencies of cited reference Glenn, and with respect to Claims 27 and 28, Applicant argues that the combination of cited references Argoitia and Glenn is improper (Ibid).
With respect to the Boudreau reference, as acknowledged by Applicant on page 12 of the Remarks, Boudreau was relied-upon narrowly for its teaching of ALD [atomic layer deposition], and not with respect to any supposed deficiencies of Claim 1 (from which Claim 25 depends). Applicant has not made any arguments against the teaching of ALD by Boudreau, nor as to the appropriateness of the combination of Boudreau with Glenn. Therefore, since the rejection of Claim 1 based on the Glenn reference is still deemed proper (see above section “Cited Reference Glenn”), the rejection of Claim 25 is still deemed proper and this rejection is maintained.
With respect to the combination of references Argoitia and Glenn, Applicant argues that there would have been no reasonable expectation of success in modifying Argoitia based upon the teachings of Glenn (see pages 12-13 of the Remarks of February 13, 2026, citing to Elekta Ltd. v. ZAP Surgical Sys., Inc., 81 F.4th 1368, 1376-77, 2023 USPQ2d 1100 (Fed. Cir. 2023), which is found in MPEP § 2143.02). Specifically, Applicant argues that the two references address fundamentally different optical mechanisms and serve entirely different purposes, with Argoitia focused on diffractive visual effects and Glenn focused on thermal and emissivity performance of coatings (pages 12-13 of the Remarks of February 13, 2026, citing to paragraphs [0004]-[0007] of Argoitia and paragraph [0002] of Glenn).
The Office acknowledges that the stated functions of Argoitia and Glenn are different, i.e., the former relating to color-shifting effects, and the latter relating to control of thermal radiation. However, the disclosed articles of Argoitia and Glenn share many similarities in their structure, in that both relate to optically functional articles comprising multi-layer stacks of layers having nanometer-scale thickness, which utilize a reflective layer such as silver [Ag], and in which titanium dioxide [TiO2] is (or may be) at least one such layer.
The question appears to be whether the dissimilarities of Argoitia and Glenn are of such nature that a reasonable expectation of success in combining the references in the manner explained by the Office would be precluded. Applicant appears to address this point by stating on page 12 of the Remarks:
[A] person of ordinary skill in the art would have no basis for expecting that introducing Glenn’s dense amorphous TiO2 layer into Argoitia would preserve, rather than disrupt Argoitia’s intended reflectivity and diffractive behavior. Moreover, nothing in Argoitia suggests incorporating a dense layer into its diffractive flakes would not negatively affect the optical properties of its flakes, and nothing in Glenn suggests that its layer architecture could be applied to diffractive pigments without materially altering their optical performance.
The Office notes several key terms in the above passage and will endeavor to address them. To assist the reader, the above passage will be repeated but with the key terms emphasized:
A person of ordinary skill in the art would have no basis for expecting that introducing Glenn’s dense amorphous TiO2 layer into Argoitia would preserve, rather than disrupt Argoitia’s intended reflectivity and diffractive behavior. Moreover, nothing in Argoitia suggests incorporating a dense layer into its diffractive flakes would not negatively affect the optical properties of its flakes, and nothing in Glenn suggests that its layer architecture could be applied to diffractive pigments without materially altering their optical performance.
It is unknown what is meant by the general terms “optical properties”, “optical performance”, and “layer architecture” other than the specifically-identified attributes of “reflectivity” and “diffractive behavior” (corresponding to optical properties/performance), and “amorphous” and “dense” (corresponding to layer architecture). Thus, the thrust of the argument appears to be that high density and/or low crystallinity [i.e., less orderly arrangement of molecules] of the TiO2 layer might affect reflectivity and/or diffraction in the device of primary reference Argoitia, and thus a person of ordinary skill in the art would not have had a reasonable expectation of success in modifying the TiO2 of Argoitia based on the teachings of Glenn.
The Office, at present, does not have reason to believe that decreasing the crystallinity [making amorphous], or increasing the density, of a TiO2 layer would negatively affect reflectivity or diffraction. Furthermore, even assuming that decreasing the crystallinity, or increasing the density, of a TiO2 layer would affect reflectivity or diffraction, the Office, at present, does not have reason to believe that such changes could not be adequately compensated for, by one of ordinary skill in the art, through minor adjustments to layer thickness (see, e.g., MPEP § 2144.05, Section II, Subsection A).
Applicant, upon being placed on notice of the Office’s position, was provided an opportunity to supply evidence that decreasing the crystallinity [making amorphous], or increasing the density, of a TiO2 layer would negatively affect reflectivity or diffraction, or at least supply evidence that one of ordinary skill in the art would have had reason to suspect this, such that there would be no reasonable expectation of success in modifying a TiO2 layer. However, the Remarks of February 13, 2026 fail to place any such evidence on the record, such as, e.g., an expert declaration (under Rule 37 C.F.R. § 1.132), or citations to scientific literature on this topic, or even citations to portions of issued patents from the same or similar field as Argoitia, which would support Applicant’s position.
The initial burden to present a prima facie case of obviousness for Claims 27 and 28 has been met by the Office, explaining the related nature of the references (multilayer optical coatings, and as more specifically articulated in the present Office Action: optically functional articles comprising multi-layer stacks of layers having nanometer-scale thickness, which utilize a reflective layer such as silver [Ag], and in which titanium dioxide [TiO2] is [or may be] at least one such layer) as well as the motivation to combine (amorphous TiO2 is particularly dense and provides exceptional barrier properties against oxygen and alkaline ions migration, as well as an extremely smooth surface, which aids in the deposition of a subsequent metal layer). See MPEP §§ 2141, Section IV and 2142.
In response, Applicant has raised a possible issue (disruption of reflectivity or diffraction) which, according to Applicant, calls into question the reasonable expectation of success in combining the Argoitia and Glenn references. However, Applicant does not appear to have met the burden of proof for a successful rebuttal, because no evidence has been provided to support Applicant’s position, and thus such assertion appears to be speculative based on the present record.
Therefore, the obviousness rejection of Claims 27 and 28 is still deemed proper and thus these claims remain rejected based upon the combination of Argoitia and Glenn.
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-5 and 7-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Itoh et al., US 2001/0040716 A1, previously-cited.
Regarding Claim 1, Itoh discloses: A multilayer thin film that reflects an omnidirectional structural color comprising (the Office notes that the term “comprising” is an open-ended transitional phrase which permits additional elements or features):
a reflective core layer (layer of support material 2, e.g., the lowermost layer of support material 2 shown in FIG. 1b of Itoh, which is located directly on substrate 4, wherein the layers of support material 2 may be metal, such as gold, silver, or titanium; paragraphs [0038]-[0041] and FIGS. 1a, 1b of Itoh);
an amorphous-phase TiO2 dielectric layer extending across the reflective core layer (layer of photocatalytic material 1, e.g., the lowermost layer of photocatalytic material 1 shown in FIG. 1b of Itoh, which is located directly on [and extends across] the lowermost layer of support material 2, wherein the layers of photocatalytic material 1 may be titanium dioxide [TiO2] and more specifically may be amorphous titanium dioxide; paragraphs [0024], [0038], [0044] and FIGS. 1a, 1b of Itoh);
a metallic absorbing layer extending across the amorphous-phase TiO2 dielectric layer (layer of support material 2, e.g., the uppermost layer of support material 2 shown in FIG. 1b of Itoh, which extends across the lower layers of photocatalytic material 1, wherein the layers of support material 2 may be metal, such as gold, silver, or titanium; paragraphs [0038]-[0041] and FIGS. 1a, 1b of Itoh); and
a dielectric outer layer extending across the metallic absorbing layer (layer of photocatalytic material 1, e.g., the uppermost layer of photocatalytic material 1 shown in FIG. 1b of Itoh, which is located directly on [and extends across] the uppermost layer of support material 2, wherein the layers of photocatalytic material 1 may be titanium dioxide [TiO2] and more specifically may be amorphous titanium dioxide; paragraphs [0024], [0038], [0044] and FIGS. 1a, 1b, 2d of Itoh; the Office notes that metal oxides are dielectric materials);
wherein the multilayer thin film reflects a single narrow band of visible light when exposed to broadband electromagnetic radiation, the single narrow band of visible light comprising: a color shift of the single narrow band of visible light is less than 300 measured in Lab color space when the multilayer thin film is exposed to broadband electromagnetic radiation and viewed from angles between 0° and 45° relative to a direction normal to an outer surface of the multilayer thin film (Itoh discloses a same physical structure and chemical composition as the claimed invention, and thus the layers of Itoh are presumed to have the same optical characteristics and properties as a result, including the claimed narrowband reflection and low angular color shift; see MPEP § 2112, Sections I and III and MPEP § 2112.01, Sections I and II; the Office further notes that (A) reflection at single narrow band of visible light, and (B) minimal color shift between different viewing angles, appear to be goals of the claimed thin film, and thus cannot form the basis of an invention, because this appears to be simply stating a desired outcome rather describing a physical structure and/or chemical composition and/or arrangement of parts which is new and non-obvious).
Regarding Claim 2, Itoh discloses the limitations of Claim 1 and further discloses: wherein the reflective core layer is formed from Al, Ag, Pt, Sn, Au, Cu, brass, bronze, TiN, Cr, or combinations thereof (the layers of support material 2 may be metal, such as gold [Au], silver [Ag], or titanium [Ti]; paragraphs [0038]-[0041] and FIGS. 1a, 1b of Itoh).
Regarding Claim 3, Itoh discloses the limitations of Claim 1 and further discloses: wherein the reflective core layer has a thickness between 50 nm and 500 nm (each layer of photocatalytic material 1 and layer of support material 2 may correspond to a thickness of 1/4th [i.e., one-fourth or one-quarter] wavelength of the desired color, wherein the device of Itoh provides visual coloring, and thus the optical thickness is 1/4th of approximately 400 nm to 700 nm [wavelengths of visible light] which is approximately 100 nm to 175 nm (1/4th of 400 nm is 100 nm, and 1/4th of 700 nm is 175 nm), which is between the claimed values of 50 nm and 500 nm; Abstract and paragraphs [0001], [0002], [0042] and FIGS. 1a, 1b of Itoh; the Office notes that the present claim language may be interpreted to include either physical thickness or optical thickness).
Regarding Claim 4, Itoh discloses the limitations of Claim 1 and further discloses: wherein the amorphous-phase TiO2 dielectric layer has a thickness between 10 nm and 150 nm (each layer of photocatalytic material 1 and layer of support material 2 may correspond to a thickness of 1/4 [i.e., one-fourth or one-quarter] wavelength of the desired color, wherein the device of Itoh provides visual coloring, and thus the optical thickness is 1/4th of approximately 400 nm to 700 nm [wavelengths of visible light] which is approximately 100 nm to 175 nm, a portion of which is between the claimed values of 10 nm and 150 nm; Abstract and paragraphs [0001], [0002], [0042] and FIGS. 1a, 1b of Itoh; the Office notes that the present claim language may be interpreted to include either physical thickness or optical thickness).
Regarding Claim 5, Itoh discloses the limitations of Claim 1 and further discloses: wherein the metallic absorbing layer is formed from W, Cr, Ge, Ni, stainless steel, Si, V, Co, Mo, ferric oxide, or combinations thereof (the layers of support material 2 may be metal, such as gold [Au], silver [Ag], or titanium [Ti], or other oxidation-resistant metals, wherein the Office notes that stainless steel is an oxidation-resistant metal; paragraphs [0038]-[0041] and FIGS. 1a, 1b of Itoh).
Regarding Claim 7, Itoh discloses the limitations of Claim 1 and further discloses: wherein the dielectric outer layer is formed from ZnS, TiO2, and combinations thereof (the layers of photocatalytic material 1 may be titanium dioxide [TiO2] and more specifically may be amorphous titanium dioxide; paragraphs [0024], [0038], [0044] and FIGS. 1a, 1b of Itoh).
Regarding Claim 8, Itoh discloses the limitations of Claim 1 and further discloses: wherein the dielectric outer layer has a thickness greater than 0.1 quarter wave (QW) to less than or equal to 4.0 QW where a control wavelength is determined by a target wavelength at a peak reflectance in a visible wavelength (each layer of photocatalytic material 1 and layer of support material 2 may correspond to a thickness of 1/4th [i.e., one-fourth or one-quarter] wavelength of the desired color of the provided visual coloring, and thus the thicknesses may be 1 QW, which is between the claimed values of 0.1 QW and 4.0 QW; Abstract and paragraphs [0001], [0002], [0042] and FIGS. 1a, 1b of Itoh; the Office notes that the present claim language may be interpreted to include either physical thickness or optical thickness).
Regarding Claim 9, Itoh discloses the limitations of Claim 1 and further discloses: wherein the dielectric outer layer has a thickness between 5 nm and 500 nm (each layer of photocatalytic material 1 and layer of support material 2 may correspond to a thickness of 1/4 [i.e., one-fourth or one-quarter] wavelength of the desired color, wherein the device of Itoh provides visual coloring, and thus the optical thickness is 1/4 of approximately 400 nm to 700 nm [wavelengths of visible light] which is approximately 100 nm to 175 nm, which is between the claimed values of 5 nm and 500 nm; Abstract and paragraphs [0001], [0002], [0042] and FIGS. 1a, 1b of Itoh; the Office notes that the present claim language may be interpreted to include either physical thickness or optical thickness).
Claims 1 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Glenn et al., US 2012/0321867 A1, cited in the IDS of April 25, 2024, and previously relied-upon.
Regarding Claim 1, Glenn discloses: A multilayer thin film that reflects an omnidirectional structural color comprising (the Office notes that the term “comprising” is an open-ended transitional phrase which permits additional elements or features):
a reflective core layer (Ag [silver] layer 2; paragraphs [0026], [0034] and TABLE 1 of Glenn);
an amorphous-phase TiO2 dielectric layer extending across the reflective core layer (layer 3 may be amorphous titanium oxide [TiO2]; paragraphs [0013], [0026], [0029], [0035] and TABLE 1 of Glenn);
a metallic absorbing layer extending across the amorphous-phase TiO2 dielectric layer (Ag [silver] layer 4; paragraphs [0026], [0036] and TABLE 1 of Glenn); and
a dielectric outer layer extending across the metallic absorbing layer (silicon nitride layer 5; paragraphs [0026], [0038] and TABLE 1 of Glenn; the Office notes that nitrides are dielectric materials);
wherein the multilayer thin film reflects a single narrow band of visible light when exposed to broadband electromagnetic radiation, the single narrow band of visible light comprising: a color shift of the single narrow band of visible light is less than 300 measured in Lab color space when the multilayer thin film is exposed to broadband electromagnetic radiation and viewed from angles between 0° and 45° relative to a direction normal to an outer surface of the multilayer thin film (Glenn discloses a same physical structure and chemical composition as the claimed invention, and thus the layers of Glenn are presumed to have the same optical characteristics and properties as a result, including the claimed narrowband reflection and low angular color shift; see MPEP § 2112, Sections I and III and MPEP § 2112.01, Sections I and II; the Office further notes that (A) reflection at single narrow band of visible light, and (B) minimal color shift between different viewing angles, appear to be goals of the claimed thin film, and thus cannot form the basis of an invention, because this appears to be simply stating a desired outcome rather describing a physical structure and/or chemical composition and/or arrangement of parts which is new and non-obvious).
Regarding Claim 6, Glenn discloses the limitations of Claim 1 and further discloses: wherein the metallic absorbing layer has a thickness between 5 nm and 20 nm (Ag [silver] layer 4 can have a thickness in the range of about 8 to 24 nm, preferably 10 to 20 nm, more preferably 12 to 18 nm, most preferably about 16 nm thick; paragraphs [0026], [0036] and TABLE 1 of Glenn).
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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 25 is rejected under 35 U.S.C. 103 as being unpatentable over Glenn in view of Boudreau et al., US 2014/0352355 A1, previously-cited.
Regarding Claim 25, Glenn discloses the limitations of Claim 1 and further discloses: A method for forming the multilayer thin film of claim 1, the method comprising: depositing the amorphous-phase TiO2 dielectric layer onto the reflective core layer by CVD or ALD; and depositing the dielectric outer layer onto the metallic absorbing layer by CVD or ALD (the layers may be deposited by conventional physical and chemical vapor deposition [CVD] techniques; paragraphs [0026], [0048] and TABLE 1 of Glenn).
Glenn does not appear to articulate the specific type of layer deposition known as atomic layer deposition [ALD], such that: depositing the metallic absorbing layer onto the amorphous-phase TiO2 dielectric layer by ALD.
Boudreau is related to Glenn with respect to coated glass.
Boudreau teaches: depositing the metallic absorbing layer onto the amorphous-phase TiO2 dielectric layer by ALD (atomic layer deposition [ALD] process may be used for metal coatings; paragraphs [0021], [0022], [0035], [0039]-[0044] and FIG. 8 of Boudreau).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select the ALD method of Boudreau for the deposition process of Glenn because such technique enables a highly conformal layer, and results in less particulate formation which can affect sensitive articles, such as microelectronics, and also avoids the need for the high temperatures required with CVD deposition, as taught in [0039], [0042], [0043] of Boudreau.
Claims 27 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Argoitia, US 2006/0263539 A1 in view of Glenn, previously-cited.
Regarding Claims 27 and 28, Argoitia discloses: A multilayer thin film that reflects an omnidirectional structural color comprising (the Office notes that the term “comprising” is an open-ended transitional phrase which permits additional elements or features):
a reflective core layer (absorber layer 19’ may comprise a semi-transparent layer of metal; paragraphs [0056]-[0058] and FIG. 1A of Argoitia);
a TiO2 dielectric layer extending across the reflective core layer (additional layer [spacer layer] 18’ may comprise titanium dioxide [TiO2] and extends across absorber layer 19’; paragraphs [0056]-[0058] and FIG. 1A of Argoitia);
a metallic absorbing layer extending across the TiO2 dielectric layer (substrate 12 extends across additional layer [spacer layer] 18’ and may be reflective and/or magnetic, and may include aluminum, silver, iron, tantalum, iridium, rhenium, copper, silver, gold, platinum, palladium, nickel, cobalt, niobium, chromium, tin, and combinations or alloys; paragraphs [0056]-[0058] and FIG. 1A of Argoitia); and
a dielectric outer layer extending across the metallic absorbing layer (absorber layer 19 extends across substrate 12 and may comprise a dielectric material such as an iron oxide [e.g., Fe.sub.2O.sub.3], silicon monoxide [SiO], chromium oxide [Cr.sub.2O.sub.3], carbon, titanium sub-oxide [e.g., TiO.sub.x where x is less than 2.0], metal carbides, metal carbo-nitrides, combinations thereof; paragraphs [0056]-[0058] and FIG. 1A of Argoitia);
wherein the multilayer thin film reflects a single narrow band of visible light when exposed to broadband electromagnetic radiation, the single narrow band of visible light comprising: a color shift of the single narrow band of visible light is less than 300 measured in Lab color space when the multilayer thin film is exposed to broadband electromagnetic radiation and viewed from angles between 0° and 45° relative to a direction normal to an outer surface of the multilayer thin film (Argoitia discloses a same physical structure and chemical composition as the claimed invention, and thus the layers of Argoitia are presumed to have the same optical characteristics and properties as a result, including the claimed narrowband reflection and low angular color shift; see MPEP § 2112, Sections I and III and MPEP § 2112.01, Sections I and II; the Office further notes that (A) reflection at single narrow band of visible light, and (B) minimal color shift between different viewing angles, appear to be goals of the claimed thin film, and thus cannot form the basis of an invention, because this appears to be simply stating a desired outcome rather describing a physical structure and/or chemical composition and/or arrangement of parts which is new and non-obvious); and
an automotive vehicle comprising a paint system comprising: a binder; and the multilayer thin film (automotive paint formulation may use a polyurethane carrier; paragraphs [0005], [0109] of Argoitia).
Argoitia does not appear to disclose: the TiO2 dielectric layer is an amorphous-phase TiO2 dielectric layer.
Glenn is related to Argoitia with respect to multi-layer optical coatings.
Glenn teaches: the TiO2 dielectric layer is an amorphous-phase TiO2 dielectric layer (in a multi-layer coating including titanium oxide [TiO2] layers, it is preferable that the titanium oxide layers be amorphous titanium oxide; paragraphs [0012], [0013], [0029], [0035] of Glenn).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select the amorphous TiO2 of Glenn for the TiO2 of Argoitia because amorphous titanium oxide [TiO2] is particularly dense and provides exceptional barrier properties against oxygen and alkaline ions migration, as well as an extremely smooth surface, which aids in the deposition of a subsequent metal layer, as taught in paragraph [0013] of Glenn.
Allowable Subject Matter
Claims 11-24, 26, 29 and 30 are allowable. Claim 10 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter.
With respect to Claim 10, although the prior art discloses various multilayer thin films that reflect an omnidirectional structural color, including:
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The prior art does not appear to disclose or suggest the above combination of features further comprising the combined features of:
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With respect to Claim 11, although the prior art discloses various multilayer thin films that reflect an omnidirectional structural color, including:
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The prior art does not appear to disclose or suggest the above combination of features further comprising:
the dielectric layer is an outer layer, wherein the Office presumes that the term outer layer is intended to require that the dielectric layer is an outermost layer
With respect to Claims 12-24, 26, 29 and 30, these claims each depend from Claim 11, and are therefore allowable for at least the reasons stated above.
Examiner Note – Consider Entirety of References
Although various text and figures of the cited references have been specifically cited in this Office Action to show disclosures and teachings which correspond to specific claim language, Applicant is advised to consider the complete disclosure of each reference, including portions which have not been specifically cited by the Examiner.
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 RYAN S DUNNING whose telephone number is 571-272-4879. The examiner can normally be reached Monday thru Friday 10:30AM to 7:00PM Eastern Time Zone. 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
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/RYAN S DUNNING/Primary Examiner, Art Unit 2872
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