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 .
Status of Claims
Claims 1-4 and 10–15 are under examination.
Response to Amendment
Applicant’s amendments overcome a few, but not most, of the desired result-type interpretations. These interpretations, and the reasoning behind them, are updated herein, with a more detailed explanation.
Applicant’s amendments overcome some, but not all, of the 112(b) rejections; the remaining ones are repeated herein. Applicant’s amendments overcome the 112(d) rejections.
Applicant’s amendments do not overcome the prior art rejections due to the excessive use of intended use/desired result-type language and indefiniteness rejections, described in detail herein.
Response to Arguments
Applicant's arguments, see Remarks dated 07/06/2026, have been fully considered but they are not persuasive for the reasons detailed below.
Regarding the 101 rejections for lack of utility, the asserted utility is based on the disclosure, not the claims. There is only one specific, asserted utility disclosed: a fusion reactor that “enables commercial viability of fusion reaction such that produced fusion energy can be used for, for example, obtaining heat, generating electricity, and so forth,” Specification, ¶ 49, at low temperatures: “4000 K to about 5000 K,” ¶ 99. Applicant’s invention is therefore directed to a cold fusion device, an inoperable invention under 35 USC § 101.1
Applicant’s invention is an electrostatic p-11B fusion device.2 While the more typical fusion fuels (D-D or D-T) require 10,000,000 K – 100,000,000 K3,4 to achieve fusion ignition (also known as breakeven, or the point at which more power is output than was input), p-11B fusion ignition requires at a minimum 1,450,000,000 Kelvin,5 over an order of magnitude greater. This is 1.45 billion degrees Celsius. No man-made device has ever achieved a sustained fusion ignition with a D-D or D-T reaction, let alone a p-11B reaction. Accordingly, the invention as disclosed is deemed inoperable, i.e., it does not operate to produce the results claimed by the Applicant.
Accordingly, the 101 rejections are maintained.
Regarding the 112(a) rejections, a deficiency under 35 U.S.C. 101 also creates a deficiency under 35 U.S.C. 112, first paragraph. See In re Brana, 51 F.3d 1560, 34 USPQ2d 1436 (Fed. Cir. 1995). Citing In re Brana, the Federal Circuit noted,
“Obviously, if a claimed invention does not have utility, the specification cannot enable one to use it.”
Accordingly, the 112(a) rejections are maintained.
Regarding the prior art rejections, Applicant argues that Wong uses ions and neutrals rotating together, whereas the instant invention uses “a specific electrostatic proton acceleration mechanism,” Remarks 07/06/2026, pages 17-18. However, the claims as drafted are overwhelmingly intended use or desired result-type limitations that are non-limiting. The positively recited steps are still taught by Wong, as detailed below. Accordingly, these rejections are maintained.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-4 and 10-15 are rejected under 35 U.S.C. 101 because the claimed invention is not supported by a well-established utility or a substantial and credible asserted utility.
In Brenner v. Manson, the Supreme Court stated that “[t]he basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point—where specific benefit exists in currently available form—the is insufficient justification for permitting an applicant to engross what may prove to be a broad field.” 383 U.S. 519, 534-35 (1966). The Manual of Patent Examining Procedure (MPEP) accordingly explains that the purpose of the utility requirement is “to limit patent protection to inventions that possess a certain level of ‘real world’ value, as opposed to subject matter that represents nothing more than an idea or concept, or is simply a starting point for future investigation or research.” MPEP § 2103, A., I.
Thus USPTO has the initial burden of setting forth a reason to doubt an Appellant's presumptively correct assertion of utility. In re Swartz, 232 F.3d 862, 864 (Fed. Cir. 2000). “The PTO may establish a reason to doubt an invention's asserted utility when the written description ‘suggest[s] an inherently unbelievable undertaking or involve[s] implausible scientific principles.”’ In re Cortright, 165 F.3d 1353, 1357 (Fed. Cir. 1999) (quoting In re Brana, 51 F.3d 1560, 1566 (Fed. Cir. 1995)).
Here, the claims are directed to an approach to nuclear fusion which Applicants identify as enabled from filling an electrode chamber with hydrogen and adding energy. Claim 1, for example, recites:
A method to perform a controlled fusion reaction, the method comprising: providing a neutral gas within a gas chamber … supplying energy to the gas chamber … forming an electrostatic potential profile comprising a plurality of potential dips and a plurality of potential peaks … bombarding the accelerated protons at the kinetic energy into the cathode to enable the controlled fusion reaction.
Dependent claim 15 further delineates that the alleged fusion reaction is caused from the cathode comprising boron.
Applicant asserts that the present invention is for production of useful electricity from nuclear fusion (“…a fusion reactor that generates more fusion power such that fusion energy can become a commercially viable source of energy,” Specification, ¶ 12) and acknowledges the difficulties that have prevented previous attempts at doing so (e.g., “In practice, temperatures in excess of 150,000,000 degrees Celsius are required to achieve positive energy balance using a D-T fusion reaction. For a proton-boron based fusion reaction, the Lawson criterion suggests that a required temperature must be yet substantially higher,” Specification, ¶ 7).
However, despite the failure of all others hitherto, Applicant claims to have overcome the tremendous barriers known in the art and invented a method for achieving fusion yielding a positive energy output without meeting the accepted and established conditions necessary for fusion to occur, known as the Lawson criterion.6 For one, fusion on Earth requires temperatures several orders magnitude greater than 15 million degrees Celsius temperature at the sun’s core.7 Mainstream nuclear science reckons that the requisite temperature for fusion on Earth is 100 million degrees Celsius or more. Applicant instead suggests abandoning the Lawson criterion entirely: “Therefore, designing of the fusion reactor based on Lawson criterion may not be feasible,” Specification at ¶ 7. Indeed, the claimed method when read in light of the Specification operates as significantly lower temperatures than would be needed for nuclear fusion to occur: “the plasma temperature is assumed to increase from, for example, 4000 K to about 5000 K,” ¶ 99. This is supported by the provisional application 63/255,382 from which the instant application claims priority at page 11, lines 223-224: “[T]he plasma temperature increases from 4000K to 5000K with the increasing of plasma kinetic energy.”
Applicants acknowledge that no one has yet created a commercially viable fusion reactor (“there is a need to develop a fusion reactor that generates more fusion power such that fusion energy can become a commercially viable source of energy,” ¶ 12) but assert precisely this specific utility:
“The method and the apparatus disclosed herein enables commercial viability of fusion reaction such that produced fusion energy can be used for, for example, obtaining heat, generating electricity, and so forth,” Specification, ¶ 49
“The method and the apparatus disclosed herein further enables design and construction of compact fusion reactors within which fusion reaction may occur. Such compact fusion reactors have reduced size and weight, are easy to handle, and have less complex design,” Specification, ¶ 49
“A method and an apparatus are provided herein in accordance with an example embodiment for initiating and maintaining a controlled fusion reaction,” Specification, ¶ 49
“The method and the apparatus disclosed herein enables performing aneutronic fusion reaction for generating clean energy,” Specification, ¶ 49
The Specification describes simulations based on the invention (see Spec. at ¶¶ 89-107), but does not provide any experimental evidence of a release of energy greater than the amount of energy input, i.e., net positive energy such as for producing useful electricity as asserted. Nor is there a disclosure of the specific mechanisms, operational parameters, etc. that an ordinarily skilled artisan would recognize as capable of sustaining a fusion reaction on the scale needed to currently achieve the benefits noted above. The lack of any experimental results, or of any supporting evidence from a third party, also weigh in favor of finding that the claimed subject matter, if even operative, lacks the real-world value required by 35 U.S.C. 101.
Current publications and documents evidence a consensus in the scientific community that there is yet to be a fusion technique—thermonuclear or cold—capable producing an energy gain sufficient for practical applications. As noted Dylla,8 as recently as 2020, the largest nuclear fusion project in the world—the International Thermonuclear Experimental Reactor (ITER)—aspired to achieve a successful fusion demonstration “for several minutes duration” by 2026 at the absolute earliest. This is with a projected cost of “greater than $10 billion.”
Further according to the official ITER9 webpage:
“The world record for fusion power in a magnetic confinement fusion device is held by the European tokamak JET. In 1997, JET produced 16 MW of fusion power from a total input heating power of 24 MW (Q=0.67). ITER is designed to yield in its plasma a ten-fold return on power (Q=10), or 500 MW of fusion power from 50 MW of input heating power. ITER will not convert the heating power it produces as electricity, but — as the first of all magnetic confinement fusion experiments in history to produce net energy gain across the plasma (crossing the threshold of Q≥1) — it will prepare the way for the machines that can.”
There currently exist no nuclear fusion reactors, thermonuclear (hot) or cold, capable of producing useful energy gain for practical applications. The National Ignition Facility (NIF) is the largest operational fusion system in the US to date that operates at extreme temperatures. In December 2022, the NIF reportedly achieved a “nuclear fusion breakthrough,” producing 3.15 MJ of fusion energy from 2.05 MJ of laser light. This was the first ever demonstration in the world of a target producing more energy than was delivered to the target. However, the laser system10 itself required 322 MJ of energy to create these fusion reactions, multiple orders of magnitude greater than the energy produced. Thus, while an achievement in fusion, the experiment is far from a demonstration of practical energy production—as stated by experts in the fusion community.11,12
When the most advanced thermonuclear fusion reactors in the world have yet to create more energy than they consume (“net” energy gain), Applicant’s claims to (a) already be in possession of a nuclear fusion device that operates without the extreme temperatures needed for traditional fusion, and (b) that such a device achieves a net energy gain would be questionable to a person of ordinary skill in the art.
To accomplish this feat, Applicant’s device relies on simply supplying energy to a neutral (hydrogen) gas in a chamber with electrodes, claim 1, for nuclear fusion-induced element power production.
However, as is known by those having ordinary skill in the art, overcoming the Coulomb barrier to achieve critical ignition for nuclear fusion is only known to occur at extremely high kinetic energies, i.e., extremely high temperatures, such as those present on the sun. Georgia State University13 explains:
“The temperatures required to overcome the coulomb barrier for fusion to occur are so high as to require extraordinary means for their achievement. Such thermally initiated reactions are commonly called thermonuclear fusion. With particle energies in the range of 1-10keV, the temperatures are in the range of 107–108 K.”
In fact, Applicant’s invention requires significantly greater temperatures than those cited above. Applicant’s invention is an electrostatic p-11B fusion device.14 While the more typical fusion fuels (D-D or D-T) require 10,000,000 K – 100,000,000 K15,16 to achieve fusion ignition (also known as breakeven, or the point at which more power is output than was input), p-11B fusion ignition requires at a minimum 1,450,000,000 Kelvin,17 over an order of magnitude greater. This is 1.45 billion degrees Celsius. No man-made device has ever achieved a sustained fusion ignition with a D-D or D-T reaction, let alone with a p-11B reaction. The instant disclosure provides no mechanism for achieving this extraordinary feat.
To the contrary, the method of the instant invention operates at low temperatures: “the plasma temperature is assumed to increase from, for example, 4000 K to about 5000 K,” ¶ 99. Applicant explicitly alleges “generating clean energy … at a substantially lower temperature,” Specification at ¶ 49. This is further supported by the provisional application 63/255,382 from which the instant application claims priority at page 11, lines 223-224: “[T]he plasma temperature increases from 4000K to 5000K with the increasing of plasma kinetic energy.”
Therefore, Applicant’s invention appears to fit squarely in the field of low-temperature nuclear reactions (LENR), or cold fusion.
In summary, Applicant’s invention tries to “have it both ways,” citing net-positive “clean” energy for solving the fusion industry’s woes (e.g., see Spec. at ¶ 49) but without any of the consequences (e.g., the necessity of confining an extremely hot nuclear reaction without melting the reactor).
Applicant’s cold nuclear fusion allegedly occurs due to the creation of an “electrostatic potential profile comprising a plurality of potential dips and a plurality of potential peaks … bombarding the accelerated protons at the kinetic energy into the cathode to enable the controlled fusion reaction,” claim 1. However, a review of the scientific literature finds no support whatsoever for this desired result, let alone simply from energizing a hydrogen gas in an electrode chamber, as recited in claim 1. To the contrary, the consensus among researchers is that p-11B fusion is still in the proof-of-concept stage [emphases added by Examiner]:
“Proton-boron (p11B) fusion is an attractive potential energy source but technically challenging to implement,” Magee,18 2023
“Proton-boron 11 (pB11) fusion is relatively safe and clean, but difficult to use for net power production, since bremsstrahlung radiation tends to radiate away power more quickly than it can be generated by fusion power, particularly once poisoning by alpha particles is taken into account. We find that breakeven requires a stagnation areal density roughly two orders of magnitude higher than the current state-of-the-art, at pressures three orders of magnitude higher,” Ochs,19 2026
“Advanced aneutronic fuels such as 3He-3He, p-11B, and p-6Li would produce considerably less neutron radiation and radioactive by-products than more conventional fusion fuels like deuterium–tritium (D-T) and deuterium-deuterium (D-D), and furthermore they might permit high-efficiency direct electric conversion of the fusion energy instead of low-efficiency thermal conversion. Unfortunately, plasma systems which are essentially in thermodynamic equilibrium cannot break even against radiation losses with these aneutronic fuels,” Rider,20 1997
“Furthermore, for 3He-3He, p-11B, and p-6Li plasmas which are in thermodynamic equilibrium, the bremsstrahlung losses are prohibitively large,” id.
“If they could be successfully employed, the advanced aneutronic fuels 3He–3He, p-11B, and p-6Li would be very attractive reactor fuels due to the very low neutron production and radioactive inventories associated with them. Unfortunately, there appears to be no way to produce net power with any of these fuels,” id.
“[A] purely electrostatic confinement system … ions will be upscattered and lost from the potential well after only a few ion-ion collision times …. However, even if the actual power loss caused by escaping ions is rather small, it will be excessively inconvenient (and costly in terms of pumping requirements and fresh ion injection) if the ions escape too rapidly, and this limitation may prevent IEC devices from being practical fusion reactors,” Rider,21 1994
“p-11B … Therefore, even if this method could be made to work as intended, proton energies in the fusion region would remain high enough to ensure that a large number of the proton-i2 collisions would happen at a net collision velocity far from the optimum collision velocity at which the peak of the fusion cross section occurs,” Rider,22 1995
“[A]chieving a net energy gain in p-11B plasma presents formidable challenges due to the significantly higher ion temperature and stringent confinement requirements,” Liu,23 2025
For the present invention, which is directed to a new way of attempting p-11B nuclear fusion at odds with established scientific principles, evidence and acceptance by the scientific community is of crucial importance because the PTO may meet its burden to establish a prima facie case of lack of utility where the written description suggests an unbelievable undertaking or implausible principles. See In re Cortright, 165 F.3d. at 1357.
The claimed invention for generating and maintaining an exothermic cold fusion reaction sufficient to be used as a viable energy source via “bombarding the accelerated protons at the kinetic energy into the cathode to enable the controlled fusion reaction” (claim 1) is too undeveloped to be considered to have a body of existing knowledge associated with it, much less reproducibility of results. See In re Swartz, 232 F.3d at 864 (“Here the PTO provided several references showing that results in the area of cold fusion were irreproducible. Thus the PTO provided substantial evidence that those skilled in the art would ‘reasonably doubt’ the asserted utility and operability of cold fusion”). Reproducibility must go beyond one’s own laboratory. One must produce a set of instructions—a recipe—that would enable a skilled artisan to produce and use the invention. If reproducibility occurs only in one’s own laboratory, errors (such as systematic errors) could reasonably be suspected. Applicant’s disclosure is insufficient as to how the embodiments described therein are based upon valid and reproducible methodology.
The Examiner cannot find, and Applicant has not supplied, any reputable and peer-reviewed papers in which the mainstream scientific community (i.e., outside of Applicant’s own laboratory or simulations) has replicated or built upon Applicant’s purportedly revolutionary discovery. Therefore, the Examiner must conclude that the claimed invention has not been independently reproduced.
In view of the above, it is more likely than not that an ordinarily skilled artisan would doubt the effective obtention of a fusion reaction, i.e., causing and capability to create useful electricity as claimed, as well the benefits asserted by Applicants as of the effective date of the claims. Rather, the preponderance of evidence supports a finding that as of the effective date, the claimed method was at most at starting point for future investigation or research. See In re Swartz, 232 F.3d at 864, In re Cortright, 165 F.3d at 1357.
Claims 1-4 and 10-15 are further rejected under 35 U.S.C. 101 because the disclosed invention is inoperative and therefore lacks patentable utility for the reasons provided in the above 101 rejection, which are incorporated herein. The production of commercial electricity via a net-positive cold nuclear fusion is considered as being Applicant's specified utility (e.g., “generating clean energy … at a substantially lower temperature … enables commercial viability … generating electricity,” ¶ 49). Applicant’s invention is disclosed as operating at energy ranges (“4000 K to about 5000 K,” ¶ 99) many orders of magnitude below what the scientific community considers conducive to nuclear fusion. The ordinary skilled artisan would find it more likely than not that Applicant’s invention was neither (a) net-energy-producing hot fusion, nor (b) cold fusion because, as detailed above: regarding (a), net-energy-producing hot nuclear fusion has never yet been observed; and regarding (b), cold fusion is considered unworkable by the scientific community. The Examiner has provided a preponderance of evidence as to why the asserted operation and utility of Applicant's invention is inconsistent with known scientific principles, making it speculative at best as to whether attributes of the invention necessary to impart the asserted utility are actually present in the invention. See In re Sichert, 566 F.2d 1154, 196 USPQ 209 (CCPA 1977). Accordingly, the invention as disclosed is deemed inoperable, i.e., it does not operate to produce the results claimed by the Applicant.
As set forth in MPEP § 2107.01(IV), a deficiency under 35 U.S.C. 101 also creates a deficiency under 35 U.S.C. 112, first paragraph. See In re Brana, 51 F.3d 1560, 34 USPQ2d 1436 (Fed. Cir. 1995). Citing In re Brana, the Federal Circuit noted,
“Obviously, if a claimed invention does not have utility, the Specification cannot enable one to use it.”
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The Specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1-4 and 10-15 are rejected under U.S.C. 112(a). Specifically, because the claimed invention is not supported by a well-established utility or a substantial and credible asserted utility for the same reasons set forth in the rejections under 35 U.S.C. 101 (which are incorporated herein), one skilled in the art clearly would not know how to use the claimed invention.
Claims 1-4 and 10-15 are further rejected under U.S.C. 112(a) as failing to comply with the written description requirement. The claims contains subject matter which was not described in the Specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor at the time the application was filed, had possession of the claimed invention. Specifically, a person skilled in the art at the time the application was filed would not have recognized that the inventor was in possession of the invention as claimed in view of the disclosure for the reasons provided in the above 101 rejections, which are incorporated herein.
Claims 1-4 and 10-15 are rejected under 35 U.S.C. 112(a) because the best mode contemplated by the inventor(s) has not been disclosed. Evidence of concealment of the best mode is based upon the disclosure of the Wong (US 2014/0219407 A1) publication cited herein. Wong discloses a reactor having a hydrogen chamber with electrodes as a source of cold fusion energy, i.e., Applicant’s claimed invention. However, as shown, this method remains unproven and unworkable for the purposes of useful electricity generation. Accordingly, if Applicant's cold fusion device is operative, while Wong’s is not, then the Examiner must conclude that some essential information is missing from Applicant's disclosure that makes Applicant's invention operative.
Claims 1-4 and 10-15 are further rejected under 35 U.S.C. 112(a) as failing to comply with the enablement requirement. The claims contains subject matter which was not described in the Specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
To be enabling, the disclosure, as filed, must be sufficiently complete to enable a person of ordinary skill in the art to make and a use the full scope of the claimed invention without undue experimentation. It is the Examiner’s position that an undue amount of experimentation would be required to produce an operative embodiment of the claimed invention.
Applicant asserts they have produced an operative device for achieving controlled nuclear fusion for useful electricity production (claim 1 and Specification at ¶ 49) in a low-temperature environment (Specification at ¶ 49 and ¶ 99).
To determine whether a given claim is supported in sufficient detail (by combining the information provided in the disclosure with information known in the art) such that any person skilled in the art could make and use the invention as of the filing date of the application without undue experimentation, at least the following factors should be included:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
This standard is applied in accordance with the U.S. Federal Court of Appeals decision In re Wands, 858 F.2d at 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988). See also United States v. Telectronics Inc., 857 F.2d 778, 785, 8 USPQ2d 1217, 1223 (Fed. Cir. 1988), cert. denied, 490 U.S. 1046 (1989).
Reviewing the aforementioned Wands factors, the evidence weighs in favor of a finding that undue experimentation would be necessary to make and use the claimed invention, and therefore, a determination that the disclosure fails to satisfy the enablement requirement. Specifically:
(A) The breadth of the claims: Applicant’s claims (e.g., see claim 1) are very broad: a hydrogen chamber supplies energy to its electrode, followed by numerous desired result-type clauses and ending with bombarding a cathode with protons, resulting in the world’s first-ever net-positive nuclear fusion method (“…to enable the controlled fusion reaction,” claim 1).
(B) The nature of the invention: The nature of the invention, i.e., the subject matter to which the claimed invention pertains, revolves around the viability of cold (low-energy) nuclear fusion as a substantial source of marketable commercial energy; as currently disclosed by Applicant, cold fusion involves a questionable departure from the accepted and well-tested theories that comprise known nuclear and plasma physics, chemistry, and electromagnetism. As such, the subject matter to which the invention pertains lies outside the realm of working science.
(C) The state of the prior art: The effects claimed by Applicant have not been verified by the existing body of scientific work and are, in fact, incompatible with it.
(D) The level of one of ordinary skill: The level of ordinary skill in the art is a skilled artisan who can create and operate nuclear fusion reactors using conventional technology that do not produce net positive energy.
(E) The level of predictability in the art: Low-temperature nuclear fusion experiments are predictably unable to produce expected, reproducible, or meaningful empirical data.
(F) The amount of direction provided by the inventor: Applicant’s disclosure does not provide the necessary step-by-step guide to actually achieve the claimed end goal of self-sustained/breakeven nuclear fusion. The disclosure simply asserts that the invention operates as alleged due to “electrostatic…peaks” bombarded by protons (e.g., end of ¶ 50 of the Specification).
(G) The existence of working examples: The Specification describes simulations based on the invention (see Spec. at ¶¶ 89-107), but does not provide any experimental evidence of a release of energy greater than the amount of energy input, i.e., net positive energy such as for producing useful electricity as asserted. Nor is there a disclosure of the specific mechanisms, operational parameters, etc. that an ordinarily skilled artisan would recognize as capable of sustaining a fusion. Nor is there evidence that the provided example has been reliably reproduced or that it enjoys mainstream support.
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure: The quantity of experimentation needed is unreasonable because the practical guidance provided is insufficient to enable one to build or operate a working prototype of the invention.
Any claim not specifically addressed above that depends on a rejected claim is accordingly also rejected under 35 U.S.C. 112(a).
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 1-4 and 10-15 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.
Claims 1-4 and 10-15 are rejected under 35 U.S.C. 112(b) as being incomplete for omitting essential steps, such omission amounting to a gap between the steps. See MPEP § 2172.01. The omitted steps are the same as those found missing in the above best mode rejection.
Claim 1 appears to recite the same step in three different ways at lines 10-16:
“forming an electron layer outside an outer surface of the cathode, based on a set of thermionically emitted electrons from the heated cathode”—this limitation recites moving electrons towards the surface of the cathode
“accelerating the electrons from the ionized neutral gas towards the cathode via a potential associated with the electron layer”—this limitation recites moving electrons towards the cathode
“bombarding the cathode by the accelerated electrons to emit a set of secondary electrons, thereby increasing a negative potential of the electron layer in a range of 10 to 100 kilovolts (kV)—this limitation recites moving electrons towards the cathode
What is the difference between the electrons moved towards the cathode in step a), step b), and step c)? Additionally, is step c) simply a desired result that follows from steps a) and b)?
Separately, the limitation at lines 12-13 reciting that electrons are accelerated towards the cathode because of the cathode’s electron layer does not make sense. If a layer of electrons is surrounded by additional electrons, the electrons will repel each other. They will not be accelerated “via a potential” towards each other. For the purposes of examination, Examiner assumes Applicant intended to recite bombarding protons toward the electrons on the cathode.
The final clause of claim 1 recites “at the kinetic energy.” This limitation has insufficient antecedent basis in the claim. This should read “within the kinetic energy in the range of 1 keV to 100 keV” unless Applicant intended to home in on a specific value within this range.
Claim 10 recites “applying a heating source across the gas chamber to perform at least: the heating of the cathode, and ionization of the neutral gas into the protons and the electrons.” However, these steps were already recited in parent claim 1. It is unclear if these steps are being repeated intentionally to achieve claim 10.
Any claim not specifically addressed in this section that depends from a rejected claim is also rejected under 35 U.S.C. 112(b) for its dependency upon an above–rejected claim and for the same reasons.
A Note from the Examiner about Desired Result-type Limitations
MPEP 2111.04 explains: “[T]he court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.24’"
This portion of the MPEP is being applied to interpret claims in the instant application. These claims are replete with statements of desired results. These statements are identified by the Examiner and interpreted in accordance with MPEP 2111.04 as cited below:
“…forming a conducting channel between the anode and the cathode, due to the
ionized neutral gas,” claim 1
The above limitation is clearly shown to be a desired result-type limitation because it recites that, due to the ionized neutral gas, a channel is formed. So, the formation of the channel is not an actively performable step but rather a result that follows from a previously recited step of ionization.
“…forming an electron layer outside an outer surface of the cathode, based on a set of thermionically emitted electrons from the heated cathode,” claim 1
The above limitation is clearly shown to be a desired result-type limitation because it recites that, based on a set of thermionically emitted electrons, forming an electron layer. So, the formation of the electron layer is not an actively performable step but rather a result that follows from some ambient state within the chamber being “based on” a “set of thermionically emitted electrons.”
“…accelerating the electrons from the ionized neutral gas towards the cathode via a potential associated with the electron layer,” claim 1
The above limitation is clearly shown to be a desired result-type limitation because it recites that, via a potential associated with the electron layer, the electrons are accelerated. So, the electron acceleration is not an actively performable step but rather a result that follows from some “potential” vaguely “associated with” the layer.
“…to emit a set of secondary electrons,” claim 1
This is a straightforward desired result. Bombardment, actively recited, hopefully causes this emission.
“…thereby increasing a negative potential of the electron layer in a range of 10 to 100 kilovolts (kV),” claim 1
This is a straightforward desired result. Bombardment, actively recited, hopefully causes secondary electron emission, which hopefully further causes an increase in negative potential.
“…forming an electrostatic potential profile comprising a plurality of potential dips and a plurality of potential peaks within the conducting channel by inducing an electron-ion two-stream instability,” claim 1
The above limitation is clearly shown to be a desired result-type limitation because it recites that, by inducing an electron-ion two-stream instability, a profile is formed. So, the formation of the profile is not an actively performable step but rather a result that follows from inducing an unstable state within the chamber, which in itself has no active steps to achieve said instability.
“…wherein the protons from the ionized neutral gas are accelerated towards the cathode at the plurality of potential peaks to reach a kinetic energy in a range of 1 keV to 100 keV,” claim 1
This is a desired result that follows from the already ill-defined creation of a “profile…by inducing an electron-ion two-stream instability. It would appear nothing is actively causing the claimed acceleration except the ambient and hopeful state of instability within the chamber.
These clauses do not serve to patentably distinguish the claimed process over that of the applied reference(s), as long as the process of the cited reference(s) is (allegedly) capable of achieving the desired result.
Claim Interpretation
It should be noted, as stated in MPEP 2173.06, “where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. §103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.” Therefore, no art rejections have been made for the dependent claims due to the numerous clarity and enablement issues noted above.
The claims are replete with functional limitations that express the desired results of the claimed method, as noted in detail above.
The following rejection under 35 U.S.C.102 is directed to the claims as best understood by the examiner, in light of the numerous significant issues under 35 U.S.C. 112 noted above. The only positively recited steps in claim 1 are as follows:
Claim 1: A method to perform a controlled fusion reaction, the method comprising: providing a neutral gas within a gas chamber, wherein the gas chamber comprises an anode and a cathode and the neutral gas is dispersed within the gas chamber; supplying energy to the gas chamber, wherein the supplying of the energy initiates at least: heating of the cathode, and ionization of the neutral gas into protons and electrons; bombarding the cathode by the accelerated electrons; and bombarding the accelerated protons at the kinetic energy into the cathode to enable the controlled fusion reaction.
These actively performable steps are rejected below.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code 102 not included in this action can be found in a prior Office action.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wong (US20140219407A1).
Regarding claim 1, Wong discloses a method to perform a controlled fusion reaction, the method comprising: providing a neutral gas within a gas chamber (“supplying hydrogen gas into said cylindrical chamber,” claim 1), wherein the gas chamber comprises an anode (8, Fig. 1) and a cathode (Fig. 1: rod 6 + boron discs 7: “the discharge rod 8 and the discharge rod 6, which function as electrodes,” ¶ 42, and the rod 6 has boron discs 7, together forming the electrode: “The stationary component of B11 is provided at the inner and outer electrodes,” ¶ 28; the cathode is also the “electron emitter,” claim 1) and the neutral gas is dispersed within the gas chamber; supplying energy to the gas chamber (“providing electrical power,” claim 1), wherein the supplying of the energy initiates at least: heating of the cathode (9 is a plasma; Examiner notes that plasma requires high temperatures, and so if 9 is a plasma created from a gas, then all the features within the chamber will be heated), and ionization of the neutral gas into protons and electrons (“ions and electrons,” ¶ 26; “p-B11 fusion,” ¶ 15; Examiner further notes that in the process of ionizing a gas, the gas is stripped of its atomic electrons, which is how it becomes ionized, therefore leading to many “free” electrons in the plasma); bombarding the cathode by the accelerated electrons [interpreted as intending to recite “protons” for the reasons described in the above indefiniteness rejections] (“p-B11 fusion,” ¶ 15, the B11 refers to the boron cathode, and the p stands for protons bombarding a B11 target); and bombarding the accelerated protons at the kinetic energy into the cathode (id.) to enable the controlled fusion reaction (“a centrifugal force which presses said hydrogen atoms and protons against the electron emitter [cathode]; and causing a fusion reaction between particles in said plasma and said target,” end of claim 1).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LILY C GARNER whose telephone number is (571)272-9587. The examiner can normally be reached 9-5 CT.
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, Jack Keith can be reached at (571) 272-6878. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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LILY CRABTREE GARNER
Primary Examiner
Art Unit 3646
/LILY C GARNER/ Primary Examiner, Art Unit 3646
1 Cold fusion devices have been to the federal circuit and lost twice. In re Swartz, 232 F.3d 862 (Fed. Cir. 2000) and In re Dash, No. 04-1145, 08/439,712 (Fed. Cir. 2004).
2 Specification at ¶ 59 and 07/06/2026 Remarks at the bottom of page 17
3 https://hyperphysics.phy-astr.gsu.edu/hbase/NucEne/coubar.html
4 https://en.wikipedia.org/wiki/Aneutronic_fusion
5 Ahmad, Irfan Maulana, et al. "Evaluation of the Lawson criterion for aneutronic proton-boron-11 fusion: effects of ion temperature and bremsstrahlung losses." Frontiers in Nuclear Engineering 5 (2026): 1714531.
6 “Plasmas must meet three conditions for fusion to occur, including reaching sufficient temperature, density, and [confinement] time.” The Science of Fusion Where triple product reigns supreme”, https://usfusionenergy.org/science-fusion (last visited October 27, 2025).
7 Id.
8 How Long is the Fuse on Fusion? Springer Nature Switzerland AG 2020, pages 85–86.
9 What will ITER do? <iter.org/fusion-energy/what-will-iter-do>
10 https://lasers.llnl.gov/science/achieving-fusion-ignition
11 Tollefson, Jeff, and Elizabeth Gibney. "Nuclear-fusion lab achieves ‘ignition’: What does it mean?." Nature 612.7941 (2022): 597-598. <https://www.nature.com/articles/d41586-022-04440-7>.
12 Thomas, William. National Ignition Facility Achieves Long-Sought Fusion Goal. Dec 16 2022. AIP News article. <https://ww2.aip.org/fyi/2022/national-ignition-facility-achieves-long-sought-fusion-goal#>.
13 Temperatures for Fusion, Department of Physics and Astronomy, Georgia State University: <http://hyperphysics.phy-astr.gsu.edu/hbase/NucEne/coubar.html>.
14 Specification at ¶ 59 and 07/06/2026 Remarks at the bottom of page 17
15 https://hyperphysics.phy-astr.gsu.edu/hbase/NucEne/coubar.html
16 https://en.wikipedia.org/wiki/Aneutronic_fusion
17 Ahmad, Irfan Maulana, et al. "Evaluation of the Lawson criterion for aneutronic proton-boron-11 fusion: effects of ion temperature and bremsstrahlung losses." Frontiers in Nuclear Engineering 5 (2026): 1714531.
18 Magee, R. M., et al. "First measurements of p11B fusion in a magnetically confined plasma." Nature communications 14.1 (2023): 955.
19 Ochs, Ian E., et al. "Bremsstrahlung constraints on proton-boron 11 inertial fusion." Physics of Plasmas 33.1 (2026).
20 Rider, Todd H. "Fundamental limitations on plasma fusion systems not in thermodynamic equilibrium." Physics of Plasmas 4.4 (1997): 1039-1046.
21 Rider, Todd Harrison. A general critique of inertial-electrostatic confinement fusion systems. Diss. Massachusetts Institute of Technology, 1994.
22 T. H. Rider, Ph.D. thesis, Massachusetts Institute of Technology, 1995.
23 Liu, B., et al. "CONFERENCE PRE-PRINT PROGRESS OF PROTON-BORON RESEARCH FOR FUSION ENERGY IN CHINA." 2025.
24 Hoffer v. Microsoft Corp., 405 F.3d 1326, 1329, 74 USPQ2d 1481, 1483 (Fed. Cir. 2005) (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)).
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