DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
2. Claims 1-20 are pending in this application and examined herein.
Asserted Utility
3. Claims 1-20 are directed to (with added emphasis) a “magnetohydrodynamic cavitation fusion energy generator” (see the preamble of all claims) that includes “at least one facilitation electrode facilitating fusion” (claim 15) “at least one extraction electrode extracting current from fusion reactions in the fuel” (claims 3, 9, 15).
4. According to the specification as filed (citations refer to PGPub), the claimed invention “marries the approach of MHD pump to aneutronic fusion in a liquid conductive metal” ([0006]) and “promotes fusion by using a noble gas-lithium-ammonia fuel that operates in a supercritical fluid state with a density much higher than other known approaches. This fuel exhibits characteristics such as electron screening, tunneling, and Rydberg atom orbitals that lower the coulomb barrier and improve fusion probabilities” ([0013]). “The present invention employs a solvated lithium ammonia-noble gas-fuel that is intermittently ignited through a cyclical cavitation process and/or electrical arcing triggering coulomb explosions” ([0038]). The invention purportedly dramatically decrease's (sic) the coulomb barrier and enable fusion reactions” by a “non-metallic quantum coulomb screening mechanism” ([0042]).
Nuclear Fusion Background
5. Definition of nuclear fusion: Nuclear fusion is defined as a process in which two or more atomic nuclei combine to form different atomic nuclei.1 The simplest atomic nucleus is hydrogen, which contains a single proton. The classic example of nuclear fusion at its most fundamental level is the combination of two hydrogen nuclei to form helium.2
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6. Comparison of nuclear fusion and nuclear fission: Nuclear fusion is fundamentally different from nuclear fission, in which a single atomic nucleus splits into fragments. The fundamental difference arises because nuclear fusion involves a reaction between two atomic nuclei whereas nuclear fission involves a reaction of a single atomic nucleus.3
7. This fundamental difference is the reason why a substantial portion of electrical energy worldwide is generated in nuclear fission reactors4 whereas there are currently no known nuclear fusion reactors capable of generating energy.5
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9. Enormous barrier to nuclear fusion: As explained above, nuclear fusion requires a reaction between two atomic nuclei. An atomic nucleus, by definition must contain at least one proton, which carries a positive charge. According to Coulomb’s Law, like electrostatic charges repel one another and the repulsive force grows exponentially as the distance between two like charges decreases. Because nuclear fusion requires at least two positively-charged protons to assume a distance of near zero, the repulsive force working against the process of nuclear fusion is enormous. Therefore, to achieve nuclear fusion, sufficient energy must be input into the fusion reactor to overcome the repulsive force.6
10. Coulombic repulsion gives rise to the Lawson criterion.7 Stated at its most broad level, successful nuclear fusion requires significant energy, e.g., temperatures on the order of hundreds of millions of degrees,8 or accelerated particle energies on the order of 100 keV.9 This is why the sun and stars can sustain nuclear fusion and produce energy while few man-made nuclear fusion reactors can achieve even a few fusion reactions and none can produce a net energy output.10
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11. Thermonuclear fusion vs. cold fusion: Thermonuclear fusion systems produce (or attempt to produce) temperatures on the order of those required to initiate fusion.11 In other words, a thermonuclear fusion reactor attempts to provide sufficient energy input to its reactant atomic nuclei to overcome Coulombic repulsion. There are a number of ways to do this. For example, Inertial Confinement Fusion (ICF) uses short, powerful laser pulses to heat and compress fusion fuel to an extremely hot and dense state having sufficient energy to initiate nuclear fusion reactions,12 while a tokamak uses magnetic fields to achieve similar conditions.13
12. Cold fusion, also known as low-energy nuclear reactions (LENR), attempts to achieve nuclear fusion at temperatures less than those known to provide sufficient energy to achieve fusion reactions. Like thermonuclear fusion, there are various theorized LENR strategies. Culminating in a 2019 publication, a multi-year, multi-disciplinary, comprehensive study of several LENR schemes “found no evidence of anomalous effects claimed by proponents of cold fusion that cannot be otherwise explained prosaically” (see Berlinguette, provided in Appendix A). The Berlinguette study and its conclusions follows in the wake of the determinations of other studies produced in the several decades since LENR was first proposed.
A 1989 British effort to obtain LENR (see Cooke, provided in Appendix A) failed: "After three months of around-the-clock work at a cost of over a half a million dollars, the project was terminated on June 15. This program is believed to be one of the most comprehensive worldwide with as many as 30 cells operating at a time and over 100 different experiments performed. The final result of this monumental effort in the words of the official press release was, in none of these experiments was there any evidence of fusion taking place under electrochemical conditions. It should also be added that there was no evidence of excess heat generated by any of their cells" (pp. 5).
A 1993 literature review of LENR (see Huizenga, provided in Appendix A) concludes: "After nearly four years and the expenditure of many tens of millions of dollars worldwide, we still only have unsubstantiated and fragmentary claims of watts of excess heat generated from light and heavy water (and H2 and D2 gases) by some unknown mechanism reported to have a nuclear origin. To this date, not a single, well-controlled and reproducible experiment has been reported where corresponding amounts of excess heat and nuclear reaction products are reliably measured. This is the current status of cold fusion. Hence, I conclude now, as I did in July 1991, that the claim that cold fusion is a nuclear process producing watts of excess power, without commensurate nuclear reaction products, is a chimera and qualifies as pathological science (sec Chapter XII). At best, the cold fusion fiasco may lead to new information on materials and energy storage, but even this has not been established at this time. Furthermore, there is still no persuasive evidence that any nuclear reaction products have been positively identified in cold fusion experiments in very low-level background environments. Regrettably, the idea of producing useful energy from room-temperature nuclear reactions is an aberration" (pp. 287).
A 2004 review conducted by the Department of Energy (see Report of the Review of Low Energy Nuclear Reactions, Provided in Appendix A) found "the occurrence of low energy nuclear reactions is not conclusively demonstrated by the evidence presented" (pp. 4), echoing the conclusions of a similar study conducted in 1989.
Analysis: Utility under 35 U.S.C. 101
13. As set forth in MPEP 2107 (MPEP 2107.02(IV)), examination requires a review of the claims and the supporting written description to determine if the application has asserted for the claimed invention any specific and substantial utility that is credible. If no assertion of specific and substantial utility for the claimed invention made by the applicant is credible, and the claimed invention does not have a readily apparent well-established utility, reject the claim(s) under 35 U.S.C. 101 on the grounds that the invention as claimed lacks utility. A prima facie showing of no specific and substantial credible utility must establish that it is more likely than not that a person skilled in the art would not consider credible any specific and substantial utility asserted by the applicant for the claimed invention. The prima facie showing must contain the following elements: (i) an explanation that clearly sets forth the reasoning used in concluding that the asserted specific and substantial utility is not credible; (ii) support for factual findings relied upon in reaching this conclusion; and (iii) an evaluation of all relevant evidence of record, including utilities taught in the closest prior art.
14. A skilled artisan would view this asserted utility as incredible based on the following considerations 1) the disclosed invention is a type of LENR; 2) the operation and effects of the present invention are not described in the scientific literature; and 3) there is no evidence that the present invention is capable of achieving nuclear fusion.
The disclosed and claimed apparatus purportedly operated by a cold fusion process (published application at [0013], [0038], [0042]). It bears no structural similarity to any known operative fusion reactor that initiates nuclear fusion by inputting enormous energy to overcome the electrostatic repulsion between the positively charged nuclei of a fuel.
There is no evidence in the knowledge generally available to a skilled artisan that a fusion device having the disclosed and claimed structure has been studied and found to be capable of initiating nuclear fusion. Moreover, there is no evidence to suggest that nuclear fusion has been achieved in XeLi(NH3) fuel in any manner.
Applicant presents no experimental evidence in the disclosure or in the application file to establish operability of the claimed device. According to MPEP 2107.02(VII), there is no predetermined amount or character of evidence that must be provided by an Applicant to support an encompassed utility, therapeutic or otherwise. Rather, the character and amount of evidence needed to support an asserted utility will vary depending on what is claimed (Ex parte Ferguson, 117 USPQ 229 (Bd. App. 1957)), and whether the asserted utility appears to contravene established scientific principles and beliefs. Evidence will be sufficient if, considered as a whole, it leads a person of ordinary skill in the art to conclude that the asserted utility is more likely true than not.
15. Based on the forgoing analysis, the examiner concludes that it is more likely than not that a person of ordinary skill in the art would not consider as credible the cold fusion utility encompassed by the claimed invention. The examiner's analysis includes: (i) an explanation that clearly sets forth the reasoning used in concluding that the encompassed utility is not credible; (ii) support for factual findings relied upon in reaching this conclusion; and (iii) an evaluation of all relevant evidence of record including the closest prior art.
Analysis: Enablement under 35 U.S.C. 112
16. The claimed invention is “a magnetohydrodynamic cavitation fusion energy generator that purportedly operated by cold fusion ([0013], [0038], [0042]). The claimed device possesses magnets and electrodes, an armature, a plurality of cavities and fuel (see claim 1). However, it is unclear how the combination of these components lead to nuclear fusion. Neither the claims nor the specification provide sufficient information to the skilled artisan on how initiate nuclear fusion reactions and generate energy with the claimed device.
17. Applicant's disclosure (and claimed invention) is, at best, theoretical. The disclosure (and claims), as best understood, is based on the unproven concept of low temperature nuclear fusion (e.g., cold fusion), which also has other names such as “low energy nuclear reaction” (LENR), etc. The disclosure acknowledges (see [0009-10]) the “ignition barrier” to nuclear fusion and the “Larsson (sic) criteria” (apparently referring to the Lawson criteria discussed above at paragraph 10), stating that the claimed invention overcomes such limitations ([0011]).
18. The disclosure does not provide the requisite detailed description of a specific, operative embodiment of the present invention. There is not an adequate description of the parameters of the invention, including, for example, size and composition of components, the voltage applied to the electrodes, fuel pressure and temperature, electrical input power. Furthermore, it is unclear how solvated electrons and Rydberg matter ([0042]) are produced by the claimed invention, and what factor they play in generating nuclear fusion reactions. The complete operational steps (and their order) required for generating nuclear fusion using the disclosed apparatus reactions is unclear. Such parameters are critical in arriving at an operative embodiment. Given the limited parameters and boundary conditions set forth in the specification, one skilled in the art would not be able to repeatedly execute the alleged heat generation or understand the alleged nuclear fusion reactions taking place.
19. Courts have determined that such LENR claims fail to comply with both the enablement requirement and the written description requirement. For example, note In re Dash, No. 04-1145, 118 Fed. Appx. 488 (Fed. Cir. Dec. 10, 2004), cert, denied, 126 S. Ct. 346 (2005). Also note In re Swartz, 232 F.3d 862, 56 USPQ2d 1703 (Fed. Cir. 2000). The examiner is bound by the court’s rulings.
20. The examiner contends that the specification does not teach the skilled artisan how to make and use the full scope of the claimed invention (i.e., using an internal armature, a plurality of magnets, a facilitation electrode, and a plurality of cavitation cavities, as recited in claim 1, to achieve nuclear fusion). This is because the full scope of the claimed invention allows for a LENR reaction, including a reaction that occurs at an unreasonably low energy/temperature. That is, the pending claims are broad enough to encompass significant nonenabled subject matter. Federal Circuit precedent has shown that claims which are broad enough to encompass significant nonenabled subject matter will be found nonenabled. For example, note: Sitrick v. Dreamworks, LLC, 516 F.3d 993, 997-1000 (Fed. Cir. 2008); Automotive Technologies Intern., Inc. v. BMW of North America, Inc., 501 F.3d 1274, 1285 (Fed. Cir. 2007); Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 905–09 (Fed. Cir. 2004); and In re Wright, 999 F.2d 1557, 27 USPQ2d 1510 (Fed. Cir. 1993).
21. The U.S. Patent Office does not have the resources to experimentally verify (or disprove) the purported operation of the claimed device. Nevertheless, the Examiner maintains that the broad scope of the claims is contrary to well-established scientific principles. The mainstream scientific community and courts have generally concluded that nuclear fusion reactions that rely on low energy/temperature are not operable. Applicant has not pointed to any evidence of record that the recited subject matter has undergone peer review by the mainstream scientific community that resulted in the recited subject matter being accepted for scientific publication. Nor does it appear that there is any evidence of academic research interested in this topic.
Claim Rejections - 35 USC § 101
22. 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.
23. Claims 1-20 are rejected under 35 U.S.C. 101 because the disclosed invention is inoperative and therefore lacks utility. Based on the above explanation and analysis, the claimed invention—a magnetohydrodynamic cavitation fusion energy generator—is not capable of achieving nuclear fusion and therefore cannot generate energy.
24. Applicant at best has set forth what may be considered a concept or an object of scientific research. However, it has been held that such does not present a utility within the meaning of 35 U.S.C. 101. See Brenner v. Manson, 148 U.S.P.Q. 689. Additionally, it is well established that when, like here, the encompassed utility of the invention is based upon allegations that border on the incredible or allegations that would not be readily accepted by a substantial portion of the scientific community, sufficient substantiating evidence of operability must be submitted by Applicant. Note In re Houghton, 167 U.S.P.Q. 687 (CCPA 1970); In re Ferens, 163 U.S.P.Q. 609 (CCPA 1969); Puharich v. Brenner, 162 U.S.P.Q. 136 (CA DC 1969); In re Pottier, 152 U.S.P.Q. 407 (CCPA 1967); In re Ruskin, 148 U.S. P.Q. 221 (CCPA 1966); In re Citron, 139 U.S.P.Q. 516 (CCPA 1963); and In re Novak, 134 U.S.P.Q. 335 (CCPA 1962). However, the record lacks sufficient substantiating evidence of operability.
25. Alternatively or additionally, claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is not supported by either a credible asserted utility or a well-established utility. Based on the above explanation and analysis, the asserted utility of the claimed invention—cold nuclear fusion—is not credible.
26. Claims 1-20 are also rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph. Specifically, because the claimed invention is not supported by either a credible asserted utility or a well-established utility for the reasons set forth above, one skilled in the art clearly would not know how to use the claimed invention.
Claim Rejections - 35 USC § 112
27. 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.
28. Claims 1-20 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) 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.
29. There is no evidence of record that Applicant's invention, which involves low energy/temperature nuclear fusion (e.g., LENR), is capable of achieving nuclear fusion at all, much less reproducibly. Rather, the concept of low temperature nuclear fusion has been known since at least 1989 and there is still no evidence (which is accepted by the mainstream scientific community) of an operating LENR apparatus/method being readily reproducible wherever desired. Such evidence would likely make national headlines. “Reproducibility” must go beyond one's own lab. One must produce a set of instructions (i.e., a recipe) that would enable anyone to produce the same results. It is the Examiner’s position that an undue amount of experimentation would be required to achieve nuclear fusion in an embodiment of Applicant's invention. Even if the alleged reactions were somehow possible, it is unlikely to produce a working “fusion energy generator” as is claimed.
30. Based on the evidence regarding the below Wands factors (In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988)), the specification at the time the application was filed, would not have taught one skilled in the art how to make the full scope of the claimed invention without undue experimentation.
• The breadth of the claims: Claim 1 is directed to “a magnetohydrodynamic cavitation fusion energy generator.” There is no information of record to indicate that the disclosed and claimed invention achieves nuclear fusion or energy generation.
• The nature of the invention: The invention encompasses a type of LENR, which lies outside the realm of working science (see analysis above). MPEP. 2164.05(a).
• The state of the prior art: The LENR method has not been verified in the scientific literature, and is, in fact, incompatible with it (see analysis above). MPEP 2164.05(a).
• The level of skill in the art: A skilled artisan in the field of nuclear reactions is one who would be capable of delving into the scientific literature in the topic and ascertaining how it could be applied to the present invention. However, a skilled artisan, most likely someone with education in the physical sciences or considerable practical experience in the field of nuclear physics, would be unable to use the scientific literature to practice the claimed invention because the purported operation of the invention contravenes accepted scientific principles. In other words, even an extraordinary amount of skill would be insufficient to practice the present invention. MPEP 2164.05(b).
• The level of predictability in the art: Prior LENR attempts were unable to produce predictable, reproducible, and meaningful empirical evidence demonstrating positive results. MPEP 2164.03.
• The amount of direction provided by the inventor: The disclosure provides insufficient guidance by which a skilled artisan could make and use the claimed invention to produce the desired result. Because the knowledge in the art indicates that practicing the present invention would be unsuccessful, and there is no predictability in the art of low energy nuclear reactions, the specification must fill in the gaps that exist in the scientific literature. MPEP 2164.03.
• The existence of working examples: The specification does not disclose a valid working example of the claimed invention. The specification lacks evidence that the Inventors have fully practiced the claimed invention to achieve the alleged result. MPEP 2164.02.
• The quantity of experimentation needed: A skilled artisan, or a group of skilled artisans, would be unable to practice the claimed invention without undue experimentation. The amount of experimentation necessary to practice the present invention is infinite, because neither the specification nor the existing body of scientific discovery provides sufficient guidance to achieve nuclear fusion reactions in the claimed apparatus. MPEP 2164.06.
31. In the above-noted Dash decision, the CAFC stated "Given the scientific community's considerable doubt regarding the utility of ‘cold fusion’ processes, we hold that the examiner established a prima facie case of lack of utility and enablement." The examiner asserts the scientific community's “considerable doubt’ still remains today.
Response to Arguments
32. Applicant's arguments filed 06/30/25 have been fully considered but they are not persuasive.
33. Regarding the claim rejections under 35 U.S.C. 101, Applicant argues that “Applicant has claimed a physical apparatus comprising physical components” and that the “Examiner has read into the claims, a process of executing cold fusion.” However, the claims, are directed to “a magnetohydrodynamic cavitation fusion energy generator,” the sole utility of which is disclosed as nuclear fusion (see paragraphs 34 and 4 of both the office action dated 03/31/25 and the present office action). Applicant has disclosed and claimed an inoperative fusion device. The rejections under 35 U.S.C. 101 are maintained.
34. Applicant presents no arguments regarding the rejections under 35 U.S.C. 112(a) as lacking enablement. The rejections are maintained.
35. The rejections under 35 U.S.C. 112(b) are withdrawn in view of the claim amendments. The drawing objection is withdrawn in view of the amendments to the specification.
Conclusion
THIS ACTION IS MADE FINAL. 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 SHARON M DAVIS whose telephone number is (571)272-6882. The examiner can normally be reached Monday - Thursday, 7:00 - 5:00 pm ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jack Keith can be reached on 571-272-6878. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHARON M DAVIS/Primary Examiner, Art Unit 3646
1 https://en.wikipedia.org/wiki/Nuclear_fusion
2 http://hyperphysics.phy-astr.gsu.edu/hbase/NucEne/fusion.html
3 https://en.wikipedia.org/wiki/Nuclear_fission
4 https://en.wikipedia.org/wiki/List_of_nuclear_power_stations
5 https://en.wikipedia.org/wiki/Timeline_of_nuclear_fusion;
6 https://openstax.org/books/physics/pages/22-4-nuclear-fission-and-fusion; http://butane.chem.uiuc.edu/pshapley/GenChem1/L7/1.html
7 https://en.wikipedia.org/wiki/Lawson_criterion
8 http://www.scienceworldreport.com/articles/5763/20130323/lawson-criteria-make-fusion-power-viable-iter.htm
9 https://en.wikipedia.org/wiki/Colliding_beam_fusion
10 https://www.world-nuclear.org/information-library/current-and-future-generation/nuclear-fusion-power.aspx
11 https://en.wikipedia.org/wiki/Thermonuclear_fusion
12 https://en.wikipedia.org/wiki/Inertial_confinement_fusion
13 https://en.wikipedia.org/wiki/Tokamak