DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5 December 2025 has been entered.
Response to Amendment
The Amendment filed 5 December 2025 has been entered. Claims 1 – 13 remain pending in the application. Claims 21 – 27 are new claims commensurate with claims 1 and 8 and therefore are under consideration.
Claim Objections
Claim 22 is objected to because of the following informalities:
Regarding claim 22, MPEP § 608.01(m) requires each claim to end with a period. However, claim 22 ends with a semicolon.
Appropriate correction is required.
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.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
Claims 1 – 7 and 25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) 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 or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 1, the vacuum adiabatic body of claim 1 requires, in relevant part, a first plate, a second plate, and a tube provided at a portion of the first plate, wherein the tube includes an inner section provided between the first plate and the second plate, wherein the inner section has a first end connected to a through-hole in the first plate and a second end positioned between the first plate and the second plate, wherein “a distance between the first end of the inner section and the second end of the inner section is longer than a thickness of the first plate”.
The examiner observes no portion of the written specification mentions such a comparison of this distance with a thickness of the first plate. At best, drawings such as Fig. 16 may appear to show this, but nothing in the written specification provides any indication as to the scale of these drawings, ranges for distances or lengths, etc., which one of ordinary skill in the art could use to reasonably infer that “a distance between the first end of the inner section and the second end of the inner section is longer than a thickness of the first plate”.
To this end, MPEP § 2125, II, notes the following about proportions of drawings:
When the reference does not disclose that the drawings are to scale and is silent as to dimensions, arguments based on measurement of the drawing features are of little value. See Hockerson-Halberstadt, Inc. v. Avia Group Int’l, 222 F.3d 951, 956, 55 USPQ2d 1487, 1491 (Fed. Cir. 2000) (The disclosure gave no indication that the drawings were drawn to scale. "[I]t is well established that patent drawings do not define the precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue."). However, the description of the article pictured can be relied on, in combination with the drawings, for what they would reasonably teach one of ordinary skill in the art. In re Wright, 569 F.2d 1124, 1127-28, 193 USPQ 332, 335-36 (CCPA 1977) ("We disagree with the Solicitor’s conclusion, reached by a comparison of the relative dimensions of appellant’s and Bauer’s [the reference’s] drawing figures, that Bauer ‘clearly points to the use of a chime length of roughly 1/2 to 1 inch for a whiskey barrel.’ This ignores the fact that Bauer does not disclose that his drawings are to scale. ... However, we agree with the Solicitor that Bauer’s teaching that whiskey losses are influenced by the distance the liquor needs to ‘traverse the pores of the wood’ (albeit in reference to the thickness of the barrelhead)" would have suggested the desirability of an increased chime length to one of ordinary skill in the art bent on further reducing whiskey losses." 569 F.2d at 1127, 193 USPQ at 335-36.)
In the case of claim 1, Hockerson-Halberstadt indicates that inferring Fig. 16, or other similar figures, in the instant specification to provide the claimed relationship between the distance and the thickness is inappropriate.
Therefore, claim 1 fails to comply with the written description requirement
Regarding claims 2 – 7 and 25, each of claims 2 – 7 and 25 depends, directly or indirectly, on claim 1. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. AIA 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, fourth paragraph. Accordingly, each of claims 2 – 7 and 25 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement for the same reasons as claim 1.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 8 – 13, 21 – 24, 26, and 27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 8, claim 8 recites “an end of the tube than the first plate is closer to the second plate” (l. 9 of the claim). The metes and bounds of claim 8 are unclear in that it appears additional recitations likely should appear between “an end of the tube” and “than the first plate” but it is not clear to the examiner what these may be. To this end, the examiner observes claim 8 may have been intended to read “an end of the tube is closer to the second plate than the first plate” but it is not immediately clear that this should be the case.
Applicant’s arguments submitted 8 December 2025 (see pp. 13 – 14 thereof) do not provide context as to what the appropriate interpretation should be. Accordingly, the examiner recommends providing the additional features needed to complete the context of claim 8 or otherwise amending or clarifying the intended scope of claim 8.
Regarding claims 9 – 13 and 26, each of claims 9 – 13 and 26 depends, directly or indirectly, on claim 8. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. AIA 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, fourth paragraph. Accordingly, each of claims 9 – 13 and 26 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for the same reasons as claim 8.
Regarding claim 21, claim 21 recites “an end of the inner section than the first plate is closer to the second plate” (l. 9 of the claim). The metes and bounds of claim 21 are unclear in that it appears additional recitations likely should appear between “an end of the inner section” and “than the first plate” but it is not clear to the examiner what these may be. To this end, the examiner observes claim 21 may have been intended to read “an end of the inner section is closer to the second plate than the first plate” but it is not immediately clear that this should be the case.
Applicant’s arguments submitted 8 December 2025 (see pp. 13 – 14 thereof) do not provide context as to what the appropriate interpretation should be. Accordingly, the examiner recommends providing the additional features needed to complete the context of claim 21 or otherwise amending or clarifying the intended scope of claim 21.
Regarding claims 22 – 24 and 27, each of claims 22 – 24 and 27 depends, directly or indirectly, on claim 21. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. AIA 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, fourth paragraph. Accordingly, each of claims 22 – 24 and 27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for the same reasons as claim 21.
Response to Arguments
Applicant’s arguments, see pp. 8 – 14, filed 5 December 2025, with respect to the double patenting rejections and rejections under 35 U.S.C. 102(a)(1) in view of Jung (US 2019/0255980 A1) have been fully considered and are persuasive. These rejections have been withdrawn.
However, issues remain under 35 U.S.C. 112 in light of Applicant’s amendments to include “a distance between the first end of the inner section and the second end of the inner section is longer than a thickness of the first plate” as required in claim 1, “an end of the tube than the first plate is closer to the second plate” as required in claim 8, and “an end of the inner section than the first plate is closer to the second plate” as required in claim 21. The examiner recommends revising the claims to correct these issues or providing a sufficient showing that these limitations satisfy the statutory requirements of 35 U.S.C. 112.
Allowable Subject Matter
Claims 8 and 21 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action. Providing other formal issues are corrected, the same applies to their respective dependent claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ETHAN A UTT whose telephone number is (571)270-0356. The examiner can normally be reached Monday through Friday, 7:30 A.M. to 5:00 P.M. Central.
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/ETHAN A. UTT/Examiner, Art Unit 1783
/MARIA V EWALD/Supervisory Patent Examiner, Art Unit 1783