Claim Rejections - 35 USC § 112
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 of Group I and the identified species in the reply filed on 12/04/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 2 and 9-12 and new claims 14-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 12/04/2025.
Examiner notes that indefiniteness of the claims preempts prosecution on the merits and amendments bringing clarity to the claimed invention may illuminate distinctness of inventions and require further restriction.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “hyperchromatic optical imagining system … comprising … laser illumination sources … at least one two-dimensional display … a hyperchromatic optical element having a wavelength-dependent focal length; an optical system …” as limited in (Claim 1), “element suitable for generating different images at at least two distinct viewing angles” (Claim 1, Specifications), “a hyperchromatic optical imagining super system” (Claim 3), “a set of hyperchromatic optical imagining systems…according to claim 1” (Claim 1, 3), adjustable lenses, mirrors, gratings and active lenses and mirrors (Claims 3, 6), a hyperchromatic optical unit comprising first and second optical units having respective fixed and adjustable focal lengths (Claim 6), movable, deformable, electro-optic embodiments of a second hyperchromatic optical element (Claim 6), must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 6 is objected to because of the following informalities: “capable to emit laser light” should be amended to “configured to emit laser light” or “capable of emitting laser light”. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are: “an element suitable for generating different images at at least two distinct viewing angles” (Claim 1), means of “applying relative motion” (Claim 6), “applying deformation” (Claim 6), “applying electro-optic effect” (Claim 6).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim 1, 3-8, and 13 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.
Claim 6 recites “a control system, wherein said control systems synchronizes AA) a state of said at least one two-dimensional display, BB) intensity modulation of laser light of said first multiple wavelength laser source, CC) intensity modulation of laser light of said second multiple wavelength laser source, and DD) a signal set to adjust said adjustable focal length of said at least one second optical element”. The specification does not disclose the computer and the algorithm (e.g., the necessary steps and/or flowcharts) that perform the claimed function in sufficient detail such that one of ordinary skill in the art can reasonably conclude that the inventor possessed the claimed subject matter at the time of filing. It is not enough that one skilled in the art could write a program to achieve the claimed function because the specification must explain how the inventor intends to achieve the claimed function to satisfy the written description requirement. See, e.g., Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 681-683, 114 USPQ2d 1349, 1356, 1357 (Fed. Cir. 2015)
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 1, 3-8, and 13 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.
The claims are generally narrative and indefinite, failing to conform with current U.S. practice. The claims are replete with grammatical and/or idiomatic errors.
Claims 1, 3-8, and 13 recite many limitations with insufficient antecedent basis. Applicant should provide corrections to all such limitations, categories of which are defined next. The errors fall into two categories: (1) using an article (e.g. “the” or “said”) to reference antecedence that does not exist in preceding limitations and (2) using an article to reference a whole set or a subset of elements and/or steps in preceding limitations. An example of the first category of indefiniteness is “the observer’s eyes” (Claim 1, Line 2). An example of the second category of indefiniteness is “the light at the wavelengths from said first plurality of wavelengths” (Claim 7) as the preceding limitations provide “laser light at a first wavelength from said first plurality of wavelengths” and “laser light at at least one second wavelength from said first plurality of wavelengths”. It is unclear if “the light at the wavelengths” references the whole set of first wavelength and at least one second wavelength or a subset of that whole set. A particularly substantive issue arises from the language of Claim 3 in providing “a set of hyperchromatic optical imagining systems, each … according to claim 1” and possible duplication of the elements implied by the first, second and third hyperchromatic optical imagining system. While the indefiniteness stemming from the language establishing the “supersystem” is discussed below, there is indefiniteness from antecedent basis when the claim does not clearly duplicate elements. In other words, Claim 1 requires “laser illumination sources at at least two distinct wavelengths” which includes embodiments in which there are two sources at single, respective wavelengths or two sources each at two, respective wavelengths, for example. In Claim 3, the duplication of hyperchromatic imagining systems “according to claim 1” are further limited by “in which said laser illumination sources operate at a first basic color range … and … said illumination sources operate at a second basic color range”. There is no reasonable interpretation to this combination of limitations on illumination sources as it’s unclear if the language is intended to limit respective pluralities of sources or to provide further, simultaneous ranges of wavelengths of the same sources or another alternative.
Claim 1 recites “laser illumination sources at at least two distinct wavelengths, whereas said laser illumination sources at at least two distinct wavelengths are encoded independently”. The claim language is given its broadest reasonable interpretation in light of the Specifications, and the only disclosure of encoding is in [0049] in which Applicant states “image is encoded with phase and intensity and under laser illumination this encoding generates an angle encoded image for each plane”. The metes and bounds of the structure capable of performing the function of encoding as well as the algorithmic solution for encoding are unclear. Further, the structure corresponding to the independence of the encoding is not clearly defined.
As note in the Claim Interpretation section above, “an element suitable for generating different images at at least two distinct viewing angles” invoked 35 U.S.C. 112(f) though is indefinite as the corresponding structure cannot be clearly determined. In the disclosure, Applicant associates angle encoding to a “spatial light modulator” without providing a structure in the disclosure. It is noted that Applicant intended to incorporate by reference “ANGULAR AND SPATIAL LIGHT MODULATOR BY SINGLE MICROMIRROR DEVICE FOR MULTI-IMAGE OUTPUT AND NEARLY-DOUBLED ETENDUE” by Hellman et al., Optics Express, volume 27, issue 15, pp. 21467-21496, Jul. 22, 2019. This is improper as the subject matter intended to be incorporated is “essential material” under 37 C.F.R. 1.57 as it is necessary to provide a written description of the claimed invention under 35 U.S.C. 112(a), describe the invention in terms that particularly point out the invention under 35 U.S.C. 112(b), and describe the structure performing the specified function under 35 U.S.C. 112(f). Further, Applicant lists possible structural solutions capable of performing the claimed function without necessarily limiting the structure as such: “two dimensional (2D) images are generated in a single plane of the display device, for example digital light processing (DLP) display, liquid crystal on silicon (LCoS) display, organic light-emitting diode (OLED) display, micro-LED display or scanning laser display”. Accordingly, there is no structure corresponding to the function “for generation different images at at least two distinct viewing angles”.
Claim 1 recites “whereas images generated are synchronized with illumination wavelengths of said laser illumination sources, such that images are created at different depths such that an observer perceives a complete three-dimensional image dependent on the viewing angle” directed to a process step within the apparatus claim. Confusion as to when direct infringement occurs results in indefiniteness of the claimed invention, Katz, 639 F.3d at 1318, 97 USPQ2d at 1749 (citing IPXL Holdings v. Amazon.com, Inc., 430 F.3d 1377, 1384, 77 USPQ2d 1140, 1145 (Fed. Cir. 2005). In this instance, it is unclear whether infringement occurs when one creates the system that allows an observer to perceive a 3D image or whether infringement occurs when the user actually uses the hyperchromatic optical imagining system.
Claim 3 recites “a set of hyperchromatic optical imaging systems, each hyperchromatic optical imaging system of said set being a hyperchromatic optical imaging system according to claim 1,said set of hyperchromatic optical imaging systems including: a) a first hyperchromatic optical imaging system in which said laser illumination sources operate at a first basic color range, and b) a second hyperchromatic optical imaging system in which said laser illumination sources operate at a second basic color range, and c) a third hyperchromatic optical imaging system in which said laser illumination sources operate at a third basic color range”. The claim does not clearly establish the metes and bounds of the supersystem as Claim 3 incorporates the limitations and language of Claim 1 and subsequently references antecedence with “said laser illumination sources” in multiple, mutually exclusive limitations. Within the scope of Claim 6, it is not clear whether respective plural illumination sources operate at a respective color range within each hyperchromatic optical imaging system or whether the same plural illumination sources are utilized within three distinct hyperchromatic optical imaging systems such that each respective source operates at first, second, and third basic color ranges.
Claim 3 recites “wherein generated three-dimensional images in said first, second, and third basic color ranges are combined to form a fully colored three-dimensional image dependent on the viewing angle, whereas wherein said generated three-dimensional images in said first, second, and third basic color ranges are combined by a device” directed to a process step within the apparatus claim. Confusion as to when direct infringement occurs results in indefiniteness of the claimed invention, Katz, 639 F.3d at 1318, 97 USPQ2d at 1749 (citing IPXL Holdings v. Amazon.com, Inc., 430 F.3d 1377, 1384, 77 USPQ2d 1140, 1145 (Fed. Cir. 2005). In this instance, it is unclear whether infringement occurs when one creates the system that allows an observer to perceive a 3D image or whether infringement occurs when the user actually uses the hyperchromatic optical imagining system.
Claim 5 recites “a digital light processing angular spatial light modulator”. This phrasing uses a trademark phrase “Digital Light Processing” without acknowledgment as such, and the claim is indefinite for the language failing to clearly define the metes and bounds of the claimed “element suitable for generating different images at at least two distinct viewing angles”. See MPEP 2173.05(u).
Claim 6 recites “[a] hyperchromatic optical imaging supersystem of Claim 3 comprising a) a first multiple wavelength laser source capable to emit laser light at a first plurality of wavelengths in a first basic color range, b) at least one second multiple wavelength laser source capable to emit laser light at a second plurality of wavelengths in a second basic color range”. This appears to be substantially redundant with the language of Claim 3, to which the claim is dependent, without clarifying whether the “first multiple wavelength laser source” is the same structure as the illumination sources of Claim 3 and Claim 1, or in addition to the illumination sources explicitly recited in those claims. This is also the case for at least one two-dimensional display, color ranges, wavelengths, hyperchromatic optical elements, two-dimensional images. Claims 7 and 8 recite analogous indefinite language whereby it is unclear if elements are duplicated or not.
Claim 6 recites “a control system, wherein said control systems synchronizes AA) a state of said at least one two-dimensional display, BB) intensity modulation of laser light of said first multiple wavelength laser source, CC) intensity modulation of laser light of said second multiple wavelength laser source, and DD) a signal set to adjust said adjustable focal length of said at least one second optical element”. Firstly, the metes and bounds of the expression “state of said at least one two-dimensional display” could not have been understood by a person having ordinary skill in the art in the context of the limitation. It is unclear what “state” of the display is capable of being synchronized to the laser modulation, for example. While synchronization of illumination modulation would have been understood by a person having ordinary skill in the art, the algorithmic solution to synchronizing the modulation, a state of the display, and a focal length adjustment signal was neither evidenced as possessed by Applicant at the time of the invention nor described with sufficient detail to particularly point out the invention.
Claim 6 recites “such that said adjustable focal length of said at least one second optical element is adjusted such as said adjustment compensates a change of said optical length of said first optical element due to switch of light between said first basic color range and said second basic color range”. The grammar of this limitation cannot be understood and the intended meaning is unclear in light of the Specifications. In part, it is unclear what is meant by “optical length of said first optical element” as this phrasing lacks antecedent basis. The best approximation of the intended grammatical construction is as follows: “such that said adjustable focal length of said at least one second optical element is adjusted such [[as said]] that focal length adjustment compensates for a change of said optical length of said first optical element due to [[switch of]] switching light between said first basic color range and said second basic color range”. Even with a grammatically-repaired clause, the metes and bounds of the claim cannot be determined as the phrasing appears to require reference to structure(s) and/or operation(s) that are not recited. For example, it appears that the claim implicitly references two distinct periods of time: a first period in which light of a first basic color range interacts with the first optical element and a second period in which light of a second basic color interacts with the first optical element. There is no such language in the claim and the presented language does not clearly limit a recited structure.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 7 recites the broad recitation “said focal length … is different for different wavelengths” and “a first focal length …and a second focal length, and the claim also recites “a first hyperchromatic optical element, having a focal length” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. It can be said that the fist hyperchromatic optical element focuses light, but not that it has a focal length that is a plurality of focal lengths.
Claim 7 recites “at least one combining optical element having a focal length distinct between a first focal length … and a second focal length”. The use of “distinct between” does not clearly define the metes and bounds of the claimed invention.
Claim 7 further recites “wherein said second mean position coincides with said first mean position, and wherein coincidence means that a distance between said second mean position and said first mean position is AAA) smaller than fifty per cent of said first spreading of positions, and BBB) smaller than fifty per cent of said second spreading of positions, wherein said second spreading of positions coincides with said first spreading of positions”. The claim explicitly defines “coincidence” relative to a distance between mean positions and uses the same phrase to relate spreadings of position that cannot be related in such a manner. In other words, the definition of coincides applies to one measure of the mean position but cannot apply to a measure of the spreading.
Pertinent Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Pats. No. 9,936193, 10,205,935, and 10,088,685 disclose various means for providing three-dimensional images with angular dependence and wavelength separation. In particular, US Pat. No. 10,088,685 provides light sources with three respective wavelengths and layered image combiners for projecting virtual images at appropriate depths.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER J STANFORD whose telephone number is (571)270-3337. The examiner can normally be reached 8AM-4PM PST M-F.
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/CHRISTOPHER STANFORD/Primary Examiner, Art Unit 2872