DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The prior art 35 U.S.C. §103 rejection of claims 1, 2, 4-6, 9-11, 13, 29, 31 and 33 as unpatentable over Crichlow (US 2010/0234663 A1 to Crichlow et al., published Sept. 16, 2010) has been maintained for reasons previously made of record in item 7 on page 3 the Non-Final Office Action dated Dec 23, 2025 (NFOA). This rejection has been extended to new claims 36-41 for reasons set forth below.
Election/Restrictions
Applicant’s election, without traverse, of Group I (claims 1, 2, 4-6, 9-11, 13, 29, 31 and 33 (and new claims 36-41) in response to the prior requirement of Nov. 24, 2025 had been previously acknowledged in items 3 and 4 on page 2 of NFOA.
New claims 42 and 43 have been withdrawn from further consideration as drawn to a nonelected invention (for reasons set forth below) but remain pending with the instant application.
Examiner notes that independent claim 29, dependent claims 31, 33 and new claims 42 and 43 have been amended to recite the repository comprising a tilted drillhole as an alternative to a substantially vertical drillhole portion. The original claims were drawn to a repository having a substantial vertical drillhole portion and were not drawn to a drillhole solely having a tilted/non-vertical drillhole.
Accordingly, there had been an election by original presentation of the repository of the present claims containing a substantially vertical drillhole. Consequently, new claims 42 and 43 have been withdrawn from consideration as drawn to a non-elected invention/species.
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 29, 31, 33 and new claims 42 and 43 are rejected under 35 U.S.C. 112(a) 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, at the time the application was filed, had possession of the claimed invention.
The claims recite a repository comprising a tilted drillhole as an alternative to a substantially vertical drillhole portion. There is insufficient written description support in the original specification as filed for the repository having solely a “tilted” drillhole. Figure 1 depicts two vertical drillholes that can have a tilted drillhole extending from the vertical drillhole. It is unclear from the present specification as to where exists sufficient written description support for an embodiment of the claimed invention solely having a tilted drillhole.
Accordingly, claims 29, 31, 33 and new claims 42 and 43 are rejected as possessing new matter.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 39, and claims 40 and 41 that depend therefrom, are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. These dependent claims merely recite mathematical formulas for calculating the surface area (claim 39) and cross-sectional area (claim 40), respectively, of the substantially vertical drillhole portion. Thus, these claims do not further limit the hazardous material storage repository of parent claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office Action.
The rejection over Crichlow is repeated herein for Applicant’s convenience.
Claims 1, 2, 4-6, 9-11, 13, 29, 31 and 33 and new claims 36-41 are rejected under 35 U.S.C. 103 as unpatentable over Crichlow.
Crichlow discloses a process for disposing nuclear waste in subterranean formations that includes the steps of: selecting a land area having a rock formation positioned below the depth able to prevent radioactive material placed therein from reaching the surface; and drilling a primary vertical wellbore (drillhole) from the surface into the underground rock formation/repository, wherein a plurality of horizontal/lateral wellbores (non-vertical drillholes) can be drilled from the primary vertical wellbore into the underground rock formation or repository, wherein the nuclear waste stored within these horizontal/lateral wellbores is encapsulated in a special waste canister that is positioned within these wellbores, and wherein the canisters are sealed to prevent loss and leakage of the nuclear waste. These canisters can be modified to allow retrievability of the canisters from the wellbore at a later date and thus return the waste to the surface for use after retrieval, wherein the cannisters can be sealed with front plugs and end plugs, and wherein sealing layers surround the cannisters (abstract; paragraphs [0010] to [0017]; [0021]; [0027]; [0037]; [0038]; Figs. 1, 4, 5, 7 and 9). The length of drillholes are typically about 1,000 meters and a casing within the drillhole contains the canisters and the casing segments ([0002]) whereas the nuclear/radioactive waste can include chemical waste, biomedical waste and warfare waste (spent nuclear fuel) ([0042]).
Crichlow discloses that, prior to drilling, the rock formation must be of a depth able to prevent radioactive material placed therein from reaching the surface and must be distant from active water sources. A vertical wellbore is drilled from the surface of the selected area into the formation, wherein a primary horizontal lateral is also drilled from the vertical wellbore whereby the surface of the horizontal lateral is defined by the underground rock formation ([0021]). A steel casing is placed within the horizontal lateral and cemented in place by circulating cement in the annular space between the steel casing and wellbore wall wherein nuclear waste is stored/placed within a canister followed by positioning the encapsulated nuclear waste within the primary horizontal lateral ([0021]; [0046]; [0048]; Figs. 6 and 8). The primary horizontal lateral is then filled with cementitious material to seal the encapsulated nuclear waste therein, wherein additional primary horizontal laterals can be drilled from the vertical wellbore and secondary and tertiary horizontal laterals can be drilled from the primary horizontal lateral ([0021]; Figs.) Additional layers of lead, cement and steel may be used to cover the laterals and shield the rock formation from any radiation leakage ([0021]. Moreover, front and end plugs can be positioned at either end of the laterals, retaining the canisters therein and providing added protection from leakage of any solid, liquid or gaseous material ([0060]; [0061]).
Crichlow further teaches that the canisters can be modified with a detachable connector (flexible enclosure) attached to the drill pipe and directed through the vertical wellbore and through the network of laterals until it reaches its final destination for storage, wherein the connector is then separated from the drill pipe and removed from the network through the laterals and the vertical wellbore up to the surface of the selected area. This process is repeated until the network is full or all the canisters are positioned within the network ([0061]; [0062]; Figs. 8-11). (The cannisters in Figs. 7-10 appear to have a male end and female end, which are beveled). Alternatively, a front plug can be placed within the lateral and an end plug placed at the terminating end of the lateral for sealing the canisters within the lateral to prevent leakage of the nuclear waste ([0063]; Figs. 11 and 12).
As to new claim 36, although Crichlow does not expressly disclose specific radioisotopes, Crichlow is concerned with storing/isolating nuclear waste, which comprises radionuclides/radioactive waste ([0009]; [0029]; [0099]). That is, Crichlow’s storage/repository is configured to provide storage/protection from radiation from any radionuclide waste, including iodine or chlorine radioisotopes, such as those recited in present claim 36.
As to new claim 38, Crichlow discloses its vertical-wellbore having a drilled-out void space (uncased) in a granite core cylinder, wherein the drilled-out void space is six inches in diameter ([0043]; [0104] to [0106]; Figs. 3A and 3B; claims 1, 4, 6, 8 and 16 of Crichlow).
As to new claim 41 and claims 4, 5 and 31, Crichlow discloses that the vertical wellbore may have a predetermined length ranging from 500 feet to 25,000 feet ([0102]) whereas its diameter can range from substantially six inches to 48 inches ([0101]). Thus, the radius in Crichlow of the diameter of six inches or more can be about 3 inches to 24 inches, whereas the length can be 1,000 to 16,000 feet. (A radius of 0.1 meters is about 3.9 inches, present claim 31). The lengths/diameters disclosed in Crichlow overlaps with those recited in present new claim 41. Accordingly, the aspect ratio of Crichlow’s vertical drillhole portion should overlap with that recited in present new claim 37.
Crichlow does not expressly disclose the aspect ratio recited in the present independent claims 1, 29 and new claim 37. However, as discussed, supra, Crichlow discloses its drillhole/repository having length and diameter properties that overlap with that of Applicant’s presently claimed storage repository. Therefore, the aspect ratio of the surface area of the vertical drillhole should overlap with that of the present claims. Moreover, generally, differences in size or in weight/volume percentages ranges will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such ranges/properties are critical1955) (Claims directed to lumber package held unpatentable over prior art because limitations regarding size of the package were not sufficient to patentably distinguish over said prior art; In re Rose, 105 USPQ 237 (CCPA 19545). See also, In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980); In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Furthermore, it would have been within the purview of one skilled in the art at the time of filing to optimize the recited aspect ratio of surface area to cross-sectional area of the drillhole that provides optimal impediment of movement of the hazardous waste towards the surface and prevent leakage. The invention in Crichlow is drawn to the "temporary or permanent disposal of nuclear waste." (See, abstract). One skilled in the art, at the time of filing of these claims, would have designed a drillhole system that would provide the greatest impediment to the movement of the stored nuclear waste and prevent radiation leakage of the hazardous waste/radioisotopes. This aspect ratio property could thus be arrived by routine optimization of this variable. See In re Aller, 220 F.2d 454, 456 (CCPA 1955) ("where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation" (citations omitted)); Pfizer, Inc. V. Apotex, Inc., 480 F.3d 1348, 1368 (Fed. Cir. 2007) ("discovery of an optimum value of a result effective variable is ordinarily within the skill of the art" and thus usually obvious (citation omitted)). See MPEP $2144.05 Il A
Thus, in the absence of substantive data/evidence of secondary considerations to the contrary, the instant claims stand as unpatentable over Crichlow.
Potential Allowable Subject Matter
Claim 6 is dependent upon rejected base claim (independent claim 1) but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims, and if the claim is further amended to limit the non-vertical drillhole portion to tilted or curved.
Crichlow discloses a repository for nuclear waste using multilateral horizontal boreholes connected to a vertical drillhole/wellbore ([0023]; [0100]; Figure 1). However, Crichlow does not teach or suggest a nuclear waste/hazardous material repository wherein the substantially drillhole further comprises a tilted or curved drillhole portion (as depicted in Applicant’s Figure 1).
Response to Arguments
The Prior Art Rejection over Crichlow (item 7 on page 3 of NFOA).
Applicant’s arguments proffered in its reply to NFOA filed Jan. 27, 2026 (“Response”) with respect to the captioned 35 U.S.C. §103 prior art rejection of the present claims as unpatentable over Crichlow have been fully considered but deemed unpersuasive.
Applicant’s primary arguments in Response traversing this obviousness rejection are drawn Crichlow not suggesting the aspect ratio of surface area property recited in present independent claim 1 and 29. These arguments have been fully considered and have been deemed unpersuasive.
As discussed, supra, Crichlow discloses borehole lengths and diameters/ratios for its substantially vertical drillhole which overlap with those recited in, for example, new claim 41. Consequently, the aspect ratio properties in Crichlow’s should overlap with that recited in present new claim 37 (between 333 and 128,000).
Nevertheless, as discussed previously in item 7 of NFOA, it would have been obvious to one in the art to optimize the physical properties of the drillhole/storage to provide optimal impediment of movement/radiation of hazardous waste towards the surface and to prevent leakage. One skilled in the art, at the time of the filing of the present claims, would have designed a drillhole system that would provide the greatest impediment to the movement of the stored nuclear waste and prevent leakage of the hazardous waste, including optimizing physical properties of the borehole/storage system to prevent leakage.
Applicant’s arguments that “Crichlow does not even concern itself with the possibilities that nuclear isotopes may leak from stored nuclear waste into subterranean water” are unpersuasive. Crichlow is concerned with isolating and protecting the environment from nuclear waste, particularly, protection from highly radioactive waste and the effects of radionuclides (radiation). The invention in Crichlow is drawn to the "temporary or permanent disposal of nuclear waste." Its main goal is to provide long-term storage by the isolation of radionuclides from the biosphere. (See, abstract; [0005]; [0009]; [0014]; [0015]; [0017]; [0022]; [0023]; [0029]; [0099]; [0128]; [0132]).
Applicant’s statement in that Crichlow does not recognize that the aspect ratio of a surface area as a result effective variable is accurate. If it did so, this rejection would instead be anticipatory. Instead, as shown, supra, Crichlow does disclose various physical properties for the vertical drillhole, such as borehole length and void/hole diameters, that can vary/optimized depending on, for example, a particular rock formation or granite rock. These physical properties are result-effective variables as would be the case for the aspect ratio.
Thus, in the absence of substantive experimental data to the contrary, the present obviousness rejection over Crichlow has been maintained.
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 JOHN J FIGUEROA whose telephone number is (571)272-8916. The examiner can normally be reached on 8:30 am -6:00 pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JOSEPH DEL SOLE can be reached on 571-272-1130. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN J FIGUEROA/Primary Examiner, Art Unit 1763
May 27, 2026
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