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 .
Election/Restrictions
Applicant's election with traverse of Group I and Species B in the reply filed on 9/8/2025 is acknowledged. The traversal is on the ground(s) that the species election requirement is improper due to lack of being “independent and distinct” and lack of “serious burden.” This is not found persuasive because the species election requirement of this application follows PCT rules and not US domestic rules. The PCT rules do not require showings of independence and distinctness or serious search burden. Instead, the PCT rules require that claims share a common technical feature; because Species A and Species B are mutually exclusive, they cannot share a common technical feature. Accordingly, Species A and Species B are properly restricted under PCT rules. The requirement is still deemed proper and is therefore made FINAL.
Claims 10, 12–13, 16, 18–22, and 37 are withdrawn
Claims 1–2, 7, 24–25, 27, 29–31, and 33 are examined herein.
Specification
The following is a quotation 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.
A review of the Specification shows that it is not properly formatted.
Content of Specification
(a) TITLE OF THE INVENTION: See 37 CFR 1.72(a) and MPEP § 606. The title of the invention should be placed at the top of the first page of the specification unless the title is provided in an application data sheet. The title of the invention should be brief but technically accurate and descriptive, preferably from two to seven words. It may not contain more than 500 characters.
(b) CROSS-REFERENCES TO RELATED APPLICATIONS: See 37 CFR 1.78 and MPEP § 211 et seq.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT: See MPEP § 310.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT. See 37 CFR 1.71(g).
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM: The specification is required to include an incorporation-by-reference of electronic documents that are to become part of the permanent United States Patent and Trademark Office records in the file of a patent application. See 37 CFR 1.77(b)(5) and MPEP § 608.05. See also the Legal Framework for Patent Electronic System posted on the USPTO website (https://www.uspto.gov/sites/default/files/documents/2019LegalFrameworkPES.pdf) and MPEP § 502.05
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR. See 35 U.S.C. 102(b) and 37 CFR 1.77.
(g) BACKGROUND OF THE INVENTION: See MPEP § 608.01(c). The specification should set forth the Background of the Invention in two parts:
(1) Field of the Invention: A statement of the field of art to which the invention pertains. This statement may include a paraphrasing of the applicable U.S. patent classification definitions of the subject matter of the claimed invention. This item may also be titled “Technical Field.”
(2) Description of the Related Art including information disclosed under 37 CFR 1.97 and 37 CFR 1.98: A description of the related art known to the applicant and including, if applicable, references to specific related art and problems involved in the prior art which are solved by the applicant’s invention. This item may also be titled “Background Art.”
(h) BRIEF SUMMARY OF THE INVENTION: See MPEP § 608.01(d). A brief summary or general statement of the invention as set forth in 37 CFR 1.73. The summary is separate and distinct from the abstract and is directed toward the invention rather than the disclosure as a whole. The summary may point out the advantages of the invention or how it solves problems previously existent in the prior art (and preferably indicated in the Background of the Invention). In chemical cases it should point out in general terms the utility of the invention. If possible, the nature and gist of the invention or the inventive concept should be set forth. Objects of the invention should be treated briefly and only to the extent that they contribute to an understanding of the invention.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S): See MPEP § 608.01(f). A reference to and brief description of the drawing(s) as set forth in 37 CFR 1.74.
(j) DETAILED DESCRIPTION OF THE INVENTION: See MPEP § 608.01(g). A description of the preferred embodiment(s) of the invention as required in 37 CFR 1.71. The description should be as short and specific as is necessary to describe the invention adequately and accurately. Where elements or groups of elements, compounds, and processes, which are conventional and generally widely known in the field of the invention described, and their exact nature or type is not necessary for an understanding and use of the invention by a person skilled in the art, they should not be described in detail. However, where particularly complicated subject matter is involved or where the elements, compounds, or processes may not be commonly or widely known in the field, the specification should refer to another patent or readily available publication which adequately describes the subject matter.
(k) CLAIM OR CLAIMS: See 37 CFR 1.75 and MPEP § 608.01(m). The claim or claims must commence on a separate sheet or electronic page (37 CFR 1.52(b)(3)). Where a claim sets forth a plurality of elements or steps, each element or step of the claim should be separated by a line indentation. There may be plural indentations to further segregate subcombinations or related steps. See 37 CFR 1.75 and MPEP 608.01(i) - (p).
(l) ABSTRACT OF THE DISCLOSURE: See 37 CFR 1.72 (b) and MPEP § 608.01(b). The abstract is a brief narrative of the disclosure as a whole, as concise as the disclosure permits, in a single paragraph preferably not exceeding 150 words, commencing on a separate sheet following the claims. In an international application which has entered the national stage (37 CFR 1.491(b)), the applicant need not submit an abstract commencing on a separate sheet if an abstract was published with the international application under PCT Article 21. The abstract that appears on the cover page of the pamphlet published by the International Bureau (IB) of the World Intellectual Property Organization (WIPO) is the abstract that will be used by the USPTO. See MPEP § 1893.03(e).
(m) SEQUENCE LISTING: See 37 CFR 1.821 - 1.825 and MPEP §§ 2421 - 2431. The requirement for a sequence listing applies to all sequences disclosed in a given application, whether the sequences are claimed or not. See MPEP § 2422.01.
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 1–2, 7, 24–25, 27, 29–31, and 33 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, the 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 cold nuclear fusion. Claim 1, for example, recites
[A] method for converting nuclear energy by fusing deuterium or tritium nuclei...
Dependent claim 7 further delineates that the method is performed at a maximum temperature of 1,000 K. Claim 24 further delineates that the method involves hydrogen absorption in a metal crystal lattice.
The nuclear method of claim 1 operates via cold fusion nuclear reactions, e.g., “”preferably at the most 350 K,” claim 7 and “Such efficient low-temperature nuclear fusion could then be used in a fusion reactor, a battery or a fuel cell to provide large amounts of energy. The present invention solves the above described problems,” Specification, page 1.
In the introduction pages of the Specification (e.g., page 1), Applicant asserts that the present invention is for “nuclear fusion at low temperatures” but acknowledges how all previous attempts at achieving said nuclear fusion reactions have failed:
“Conventionally, an approach has been tried using a plasma having high temperature, and to overcome the electromagnetic repulsion through high-speed collisions between nuclei due to said high temperature….The property of random collisions, however, translates directly to low efficiency. The high temperature also translates to an expensive energy production and safety problems.”
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 producing low energy nuclear fusion. The claimed energy-generating method requires nuclear fusion without meeting the accepted and established conditions necessary for fusion to occur, known as the Lawson criterion1. For one, fusion on Earth requires temperatures several orders magnitude greater than 15 million degrees Celsius temperature at the sun’s core2. Mainstream nuclear science reckons that the requisite temperature for fusion on Earth is 100 million degrees Celsius or more3. The claimed method when read in light of the Specification, by contrast, operates as significantly lower temperatures than would be needed for nuclear fusion to occur. Specifically, claim 7 recites generating energy at “preferably at the most 350 K.”
Applicants envisage that the invention fulfills a need “to release significant amounts of fusion energy,” Specification, page 2. The disclosed and asserted utilities include producing commercially valuable cold fusion: “Hence, the present method is a method of dynamical state preparations to achieve Cold Fusion….Fusion Reactor embodiments…Battery and Fuel Cell embodiments,” Specification, page 26.
The Specification puts forth theoretical models but does not demonstrate any experimental results of Applicant’s claimed method. 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 specificity per any practical embodiments weighs in favor of finding that the claimed subject matter, if even operative, lacks the real-world value required by 35 U.S.C. 101.
Other publications and documents evidence a consensus in the scientific community that there is yet to be a fusion technique—thermonuclear (hot) or cold—capable producing an energy gain sufficient for practical applications. As noted Dylla4, as recently as 2020, the largest nuclear fusion project in the world—the International Thermonuclear Experimental Reactor (ITER)—aspired to achieve a successful fusion ignition 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 ITER5 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, 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 system6 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 community7,8.
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 (a) to be in possession of a nuclear fusion method that operates without the extreme temperatures needed for traditional fusion (“Cold Fusion,” Specification, page 26), and (b) that said method is so efficient as to be suitable for releasing “significant amounts of fusion energy” such as for a “reactor, a battery or a fuel cell” (Specification, pages 1-2) would be found questionable to a person of ordinary skill in the art.
To accomplish these feats, Applicant’s method relies on a precise manipulation of atomic nuclei and their orbiting electrons at cold temperatures, e.g., see claims 1 and 7.
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 University9 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.”
Applicants have failed to sufficiently disclose how the claimed method for manipulating nuclei is capable of producing or sustaining a fusion reaction. The disclosure provides no mechanism for achieving and maintaining the temperatures of hundreds of millions of degrees Celsius/Kelvin known to be required to achieve nuclear fusion ignition.
To the contrary, the method for generating energy as recited in the independent claim is repeatedly described as occurring in a relatively cold environment, e.g., see “cold fusion” explicitly relied upon in the Specification at pages 12, 18, 19, 24, 25, 26, 27, 29, 30, 35, 46, 47, 48, 49, 53, 55, 56, 60, 61, 63, 70, 71, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 92, 93, 94, 95, 96, 97, 99, 100, 101, 102, 103, 105, 106, 108, 110, and 112.
The apparatus of the instant invention operates exclusively at low temperatures. Examiner cannot find any instances of hot fusion or indeed, any mechanism responsible for the claims other than cold fusion.
As cited above in the quotation from Georgia State University, the minimum temperature required for nuclear fusion ignition is between 10,000,000 and 100,000,000 Kelvin. Applicant’s range is 350 Kelvin to 1000 Kelvin (claim 7). Therefore, Applicant’s invention is undoubtedly cold fusion.
For the present invention, which is directed to a way of attempting 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.
A review of the Specification shows that the success of the invention depends on an ability to precisely manipulate a first and a second hydrogen nucleus, surrounding magnetic field, a spin10 of the first nucleus and a spin of the second nucleus their electron orbits (claim 1).
Unfortunately, while the disclosure provides extraordinary detail of prophetic embodiments, no explanation is provided as to how the skilled artisan would be able to practically perform such precise atomic manipulation. The presumption that the fusion barrier between proximate hydrogen nuclei may be overcome by precisely manipulating their subatomic particles with the aid of a well-defined host structure (“metal crystal,” claim 24) is fundamental to the Fleishmann & Pons experiments debunked in the 1990s11. The cold fusion phenomenon was rigorously revisited as recently as 201912, with the authors concluding:
“Motivated by the possibility that such judgement [against Fleischmann and Pons] might have been premature, we embarked on a multi-institution programme to re-evaluate cold fusion to a high standard of scientific rigour. Here we describe our efforts, which have yet to yield any evidence of such an effect.“
In other words, the scientific community is not yet able to manipulate the behavior of subatomic particles to the point of producing a method capable of causing cold nuclear fusion, as claimed by Applicant.
The claimed invention—a cold fusion scheme—for generating and maintaining a cold fusion reaction sufficient to be used as a viable energy source (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 prophecies) 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 cold fusion reaction, i.e., causing and capability to generate energy 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 1–2, 7, 24–25, 27, 29–31, and 33 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 useful energy, commercially valuable non-ionizing radiation, and isotopes from a nuclear fusion reaction is considered as being Applicant's specified utility (see Specification at page 1). Applicant’s invention is claimed as operating at temperatures (claim 7) 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) useful-energy-producing fusion, nor (b) cold fusion because, as detailed above: regarding (a), net-energy-producing nuclear fusion has never yet been observed; and regarding (b), cold fusion is considered unworkable by the scientific community, and the success of the claimed invention requires a level of subatomic manipulation and control well beyond what is currently considered possible. 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 1–2, 7, 24–25, 27, 29–31, and 33 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 1–2, 7, 24–25, 27, 29–31, and 33 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 1–2, 7, 24–25, 27, 29–31, and 33 are 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 admits that previous, well-funded and decades-long attempts at producing viable nuclear fusion reactors have been unsuccessful (Specification, pages 1–2). Even so, Applicant believes they have produced an operative method for achieving nuclear fusion for useful energy production (“A method for converting nuclear energy by fusion deuterium or tritium nuclei,” claim 1) in a low-temperature environment (e.g., preferably below 350 K, claim 7).
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 to provide a cold fusion reaction are broad, as evidenced by their lack of performable method steps in favor of heavy reliance on intended use and desired results (e.g., see claim 1’s desired subatomic manipulations).
See MPEP § 2164.08.
(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 nuclear fusion as a source of commercial energy; as currently disclosed by Applicant, the cold fusion method 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.
See MPEP § 2164.05(a).
(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.
See MPEP § 2164.05(a).
(D) The level of one of ordinary skill: The claims are directed to cold fusion. Thus, the level of ordinary skill in the art is challenging to ascertain. The claimed technique is explicitly fusion at cold temperatures. Those generally skilled in the art would appreciate the obstacles and repeated failure in achieving/sustaining nuclear fusion when the Lawson criterion is not satisfied—e.g., extreme temperatures. Those skilled in the art would also understand that cold nuclear fusion, upon which the instant invention relies, remains within the realm of fringe science and offends generally accepted physics.
See MPEP § 2164.05(b).
(E) The level of predictability in the art: Cold nuclear fusion experiments are predictably unable to produce expected, reproducible, or meaningful empirical data.
See MPEP § 2164.03.
(F) The amount of direction provided by the inventor: Applicant provides no rigorous experimental third-party results or other substantial supporting evidence for the record.
See MPEP § 2164.03.
(G) The existence of working examples: The Specification lacks specific working examples. Nor is there evidence that the provided example has been reliably reproduced or that it enjoys mainstream support. See MPEP § 2164.02.
(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, and the provided theoretical guidance is insufficient to enable one to understand the underlying sequence of phenomena required to attempt such an endeavor. See MPEP § 2164.06.
Any claim not specifically addressed in this section that depends from a rejected claim is also rejected under 35 U.S.C. 112(a), for its dependency upon an above–rejected claim and for the same reasons.
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 1–2, 7, 24–25, 27, 29–31, and 33 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 29, 30, and 31 depend from a cancelled claim and are therefore incomplete. Accordingly, the metes and bounds of these claims cannot be determined. See MPEP 608.01(n)(V).
Claim 2 recites “wherein the total magnetic field (B) is arranged to generate an energy splitting between hydrogen nucleus spin states which is then used to separate wanted spins from unwanted spins using an electromagnetic field (2) arranged to filter out nuclei not having particular predetermined energy states.” This claim, in its entirety, describes an intended use and desired result that Applicant hopes might follow from the performance of the actively recited steps of claim 1. There are no actual steps for an operator or a machine to perform in claim 2. Accordingly, the metes and bounds of the claim are unclear.
Claim 24 recites, in the first two lines, a plurality of steps followed by “is performed.” It is unclear why a plurality of subjects is modified by a singular verb. It is unclear if only one of the previous steps a, c, or d, is being modified by this verb.
Claim 24 recites, in line 3, “such as via diffusion or bombardment.” The use of the phrase “such as” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 24 recites “which metal crystal may be a monocrystal.” The use of the phrase “may be” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 24, the term "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the term are part of the claimed invention. See MPEP § 2173.05(d).
Claim 24 recites “wherein the modifying of the electron orbits of steps c) and d)…having a crystal structure achieving the modify of the electron orbits of steps c) and d).” This language is circular. The modifying step cannot be further modified by itself.
In claim 24, it is unclear what the subject of the term “which metal crystal” in lines 6-7 is. Is this term referring back to the metal crystal or line 3 or the metal crystal of line 6?
Claim 27 recites “a third aligning electric field.” There is insufficient antecedent basis for this limitation in the claim.
Claim 24 recites “possibly complex.” The use of the phrase “possibly” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 7, the term "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the term are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 31, the term "preferred" renders the claim indefinite because it is unclear whether the limitation(s) following the term are part of the claimed invention. See MPEP § 2173.05(d).
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.
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.
For Applicant’s benefit, portions of the cited reference(s) have been cited to aid in the review of the rejection(s). While every attempt has been made to be thorough and consistent within the rejection, it is noted that the prior art must be considered in its entirety, including disclosures that teach away from the claims. See MPEP 2141.02 VI.
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, 2, and 33 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kulsrud (USH446H).
Regarding claim 1, Kulsrud discloses a method for converting nuclear energy by fusing deuterium or tritium nuclei, which method comprises the initial step of providing a first hydrogen atom, in turn comprising a first deuterium or tritium nucleus and a first electron, and a second hydrogen atom, in turn comprising a second deuterium or tritium nucleus and a second electron (col. 1, ll. 14–24; Examiner notes that deuterium and tritium isotopes necessarily have electrons), which method further comprises the following steps: a) bringing the first nucleus and the second nucleus together to a distance between the first and second nucleus of at the most 7 Å (since the hydrogen fuel is fusing, e.g., physically joining together, in nuclear fusion, then their nuclei must necessarily be at a distance less than 7 Å as the distance approaches zero); b) applying a first magnetic field (H) such that a resulting total magnetic field (B) is arranged to align a first spin of the first nucleus in relation to a second spin of the second nucleus so that a respective spin axis of the first and second spins are anti-parallel and directed either towards each other or away from each other (“polarizing the D nuclei transverse to B,” col. 3, ll. 30–34) and so that the first and second spins are projected on a common line between the first and second nuclei, which common line is parallel or anti-parallel to the total magnetic field (B) (id.; furthermore, Examiner notes that the claimed “common line” may be arbitrary drawn to be parallel or anti-parallel to the magnetic field B); c) ionizing the first hydrogen atom (“The gas is then ionized and heated in the usual way to form a plasma,” col. 4, ll. 2–3), or modifying the electron orbit of the first electron such that a spatial distribution for the first electron is such that the probability for the first electron to exist in a region between the first and second nuclei along the common line is smaller than in a spherically symmetric spatial distribution (the modifying step is optional); d) ionizing the second hydrogen atom (“The gas is then ionized and heated in the usual way to form a plasma,” col. 4, ll. 2–3), or modifying the electron orbit of the second electron such that a spatial distribution for the second electron is such that the probability for the second electron to exist in a region between the first and second nuclei along the common line is smaller than in a spherically symmetric spatial distribution (the modifying step is optional), wherein steps a)-d) may be performed in any order but so that the first and second nuclei are provided at the distance (since the hydrogen fuel is fusing, e.g., physically joining together, in nuclear fusion, then their nuclei must necessarily be at a distance less than 7 Å as the distance approaches zero), with the spin orientation (“polarizing the D nuclei transverse to B,” col. 3, ll. 30–34) and the ionized (“The gas is then ionized and heated in the usual way to form a plasma,” col. 4, ll. 2–3) or electron orbit modified state, at one and the same time (polarization and ionization occur along with the distance between the deuterium and tritium nuclei approaching zero).
Regarding claim 2, Kulsrud anticipates all the elements of the parent claim and additionally discloses wherein the total magnetic field (B) is arranged to generate an energy splitting between hydrogen nucleus spin states which is then used to separate wanted spins from unwanted spins using an electromagnetic field (2) arranged to filter out nuclei not having particular predetermined energy states: Claim 2, in its entirety, describes an intended use and desired result that Applicant hopes might follow from the performance of the actively recited steps of claim 1. Therefore, Examiner may only assume that, since Kulsrud discloses each and every feature of parent claim 1, then if Applicant’s method is capable of achieving these desired results, then so too can Kulsrud’s method.
Regarding claim 33, Kulsrud anticipates all the elements of the parent claim and additionally discloses wherein the bringing together of step a) is achieved by the first and second nuclei forming, or forming part of, a deuterium or tritium molecule (col. 1, ll. 14–24).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis 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.
For Applicant’s benefit, portions of the cited reference(s) have been cited to aid in the review of the rejection(s). While every attempt has been made to be thorough and consistent within the rejection, it is noted that the prior art must be considered in its entirety, including disclosures that teach away from the claims. See MPEP 2141.02 VI.
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 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 7, 24, 25, 27, 29, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Kulsrud in view of Waisman (US 2003/0053579).
Regarding claim 7, Kulsrud anticipates all the elements of the parent claim, and additionally discloses wherein the hydrogen atoms and deuterium or tritium nuclei are kept at an average temperature (implicit).
Kulsrud does not explicitly suggest the temperature which is at the most 1,000 K, preferably at the most 500 K, preferably at the most 350 K, throughout the process.
Waisman does. Waisman is also in the art area of cold fusion and teaches (abstract) maintaining a deuterium fusion reaction in a metal lattice that overlaps this range (400-1400 Celsius is approximately 673-1673 K). The ordinary skilled artisan would have been motivated to utilize the cold temperatures of Waisman because, if it worked, cold fusion could solve all the world’s energy problems.
Regarding claim 24, Kulsrud anticipates all the elements of the parent claim, and additionally discloses wherein the modifying of the electron orbits of steps c) and d) and the bringing together of step a) is performed by using a plurality of ionized or non-ionized deuterium or tritium atoms, as cited in response to claim 1, but does not explicitly disclose loading D or T into a metal crystal.
Waisman does. Waisman is also in the art area of cold fusion and teaches (abstract) maintaining a deuterium fusion reaction in a metal crystal (“palladium host metal lattice,” abstract and “crystal lattice structure,” ¶ 57) or connecting the metal crystal as an anode and placing the corresponding cathode into water composed of the selected hydrogen isotope and then loading the metal crystal with hydrogen via electrolysis, which metal crystal may be a monocrystal or polycrystalline material having a crystal structure achieving the modifying of the electron orbits of steps c) and d) as a result of a geometry of the crystal structure when the deuterium or tritium nuclei are loaded into the metal crystal so as to occupy crystal lattice positions with a distance between two adjacent ones of the nuclei of at most one lattice constant apart (this step is optional as it is preceded by “or”).
The skilled artisan would have been motivated to utilize the loading of Waisman because, as explained by Waisman (¶ 22), “The reactor may be permanently sealed after `loading` the deuterium, allowing the reactor to be stored and later operated separate from its deuterium pressurizing equipment. Use on a moving vehicle that requires portability of its energy source would be a typical candidate application for the sealed reactor.”
Regarding claim 25, modified Kulsrud teaches all the elements of the parent claim. This combination does not explicitly suggest ratios of D or T atoms/metal atoms. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have optimized this ratio to being at least 0.8, since it has been held that discovering optimum or workable values of a result-effective variable involves only routine skill in the art. In this case, the skilled artisan may easily experiment with this ratio to determine the optimum values or ranges thereof.
Regarding claim 27, modified Kulsrud teaches all the elements of the parent claim, and Kulsrud additionally discloses applying a third aligning electric field (the polarized field constitutes an electric field, e.g., col. 2, ll. 10–16) causing Bloch oscillations arranged to momentarily decrease a relative distance between nuclei located adjacent each other in the metal crystal (the “causing” phrase amounts to an intended use or desired result that Applicant hopes might follow from the performance of the actively recited steps of claim 1; therefore, Examiner may only assume that, since modified Kulsrud teaches each and every feature of the parent claims as well as the instantly recited electric field, then if Applicant’s method is capable of achieving these desired results, then so too can modified Kulsrud’s method).
Regarding claim 29, modified Kulsrud teaches all the elements of the parent claim, and Waisman additionally teaches wherein the metal crystal is any of palladium, titanium, magnesium, aluminium, lithium, sodium, lanthanum or nickel, or a (possibly complex) compound with any of these elements as one component (“palladium,” abstract). The skilled artisan would have been motivated to utilize a palladium structure for the same reasons provided above in response to claim 24.
Regarding claim 30, modified Kulsrud teaches all the elements of the parent claim, and Waisman additionally teaches wherein a field strength of an induced magnetic field within the metal crystal is increased using a ferromagnetic material comprising cobalt, iron, nickel, neodymium and/or samarium inside or in connection to the metal crystal (¶ 44). The skilled artisan would have been motivated to utilize an alloy structure in order to imbue the apparatus with the benefits of multiple elements.
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Kulsrud as modified by Waisman above, further in view of Bakal (DE10033969).
Regarding claim 31, modified Kulsrud teaches all the elements of the parent claim, and Kulsrud additionally discloses a transverse magnetic field (col. 3, l. 32) but does not explicitly disclose a second, orthogonal magnetic field. Bakal does. Bakal is also in the art area of fusion reactors and teaches (fig. 1) a first magnetic field (B+) and wherein a second magnetic field is applied (B-) wherein the second magnetic field is applied to be orthogonal to the first magnetic field within a ±10% margin (H) (“the magnetic fields B+ and B- perpendicular…in the opposite direction[s],” page 3), which first magnetic field (H) furthermore preferably is a static magnetic field (this limitation is presumed optional as it merely indicates a preferred status).
The skilled artisan would have been motivated to utilize the orthogonal magnetic fields as suggested by Bakal in order to influence the direction of ions flowing at different parts of the reactor, as shown by Bakal in Figs. 1 and 3.
This combination does not explicitly teach that second magnetic field is varied over time with a frequency within 25% of the corresponding nuclear spin projection transition resonance energy of the ionized or non-ionized deuterium or tritium. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have optimized the frequency variation, since it has been held that discovering optimum or workable values of a result-effective variable involves only routine skill in the art. In this case, the skilled artisan may easily experiment with this ratio to determine the optimum values or ranges thereof.
Conclusion
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LILY CRABT