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 .
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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 limitation(s) is/are:
“first resonant structure” in claim 1
The generic placeholder is “first resonant structure” and the functional language attributed the “first resonant structure” includes: “configured to have inductance, capacitance and resistance features and forming a first equivalent circuit”
Structure “read into” the claims from the specification to support the claimed functional language includes “a split ring resonator having inductance, capacitance and resistance features.”
“second resonant structure” in claim 1
The generic placeholder is “second resonant structure” and the functional language attributed the “first resonant structure” includes: “configured to have inductance, capacitance and resistance features and forming a second equivalent circuit”
Structure “read into” the claims from the specification to support the claimed functional language includes “a split ring resonator having inductance, capacitance and resistance features.”
Claim Rejections - 35 USC § 112
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 1-6 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.
Claim 2-3 recites the limitation "claim 10" in line 3. There is insufficient antecedent basis for this limitation in the claim. Claim 10 does not exist in the claim set.
Claim 1 recites “first resonant structure configured to have inductance, capacitance and resistance features and forming a first equivalent circuit.” However, the material of the resonant structure is not claimed. The configuration of the structure is not claimed and it is not clear how it would be configured, based on the claim language in order to have inductance, capacitance and resistance features and forming a first equivalent circuit. The claim could be interpreted to have a physical circuit rather than the resonant structure represent a LCR circuit.
Claim 1 recites “second resonant structure configured to have inductance, capacitance and resistance features and forming a first equivalent circuit.” However, the material of the resonant structure is not claimed. The configuration of the structure is not claimed and it is not clear how it would be configured, based on the claim language in order to have inductance, capacitance and resistance features and forming a second equivalent circuit. The claim could be interpreted to have a physical circuit rather than the resonant structure represent a LCR circuit.
Claims 4-6 are rejected due to their dependency on a rejected claim.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 4-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 10, 15 of U.S. Patent No. 11, 585,961. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the applicant and patent are nearly identical except for the patent failing to disclose the dynamic refraction device. However, the meta-material in the patent is used in a dynamic refraction device as in claim 10 of the patent.
Claim 4 recites “time-varying characteristics of the control electromagnetic radiation such that the refractive index of the dynamic refraction device is correspondingly changed, thereby refocusing the controlled electromagnetic radiation in accordance with the time-varying characteristics of the control electromagnetic radiation which is then collected by the optical collector for signal processing”, which is not disclosed in the claims of the patent. However, the patent states it would have been obvious to vary the characteristics in this manner for rapid switching without mechanical means. The same reasoning applies for claim 6.
Claim 5 recites, “varying characteristics of the control electromagnetic radiation such that the refractive index of the dynamic refraction device is configured to either focus the controlled electromagnetic radiation onto the optical collector creating an 'on' condition or deflecting the controlled electromagnetic radiation away from the optical collector creating an 'off condition” which is not disclosed in the claims of the patent. However, the patent states it would have been obvious to vary the characteristics in this manner for when a binary control signal carried on low-intensity electromagnetic radiation has to be transferred to a binary control signal carried on higher-intensity and longer-wavelength electromagnetic radiation. It could also be used to detect the presence of low-intensity (control) electromagnetic radiation, the system being configured to produce high-output (controlled) electromagnetic radiation when the low-intensity electromagnetic radiation is present or not present.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Filonov (Resonant meta-atoms with nonlinearities on demand) as cited by applicant and provided by applicant in parent application 16/338567).
Regarding claim 1, Filonov discloses (See Figure reproduced below) a dynamic refraction device comprising a meta-material (See page 1, Abstract), with the device in the figure being a unit cell having a first resonant structure (SRR in the X-Y plane or horizontal orientation) and a second resonant structure (SRR in the Y-Z plane or vertical orientation)
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The corresponding circuit shows the first SRR having inductance, capacitance and resistance features, first SRR having inductance, capacitance and resistance features and the single capacitor (indicated by the arrow) forming a common element of a non-linear dielectric material which connects the two SRRs.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN W JENNISON whose telephone number is (571)270-5930. The examiner can normally be reached M-Th 9-5.
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/BRIAN W JENNISON/Primary Examiner, Art Unit 3761 11/9/2025