DETAILED ACTION
Notice of Pre-AIA or AIA Status
This action is in response to the Notice of Appeal filed 5 August 2026 for the application filed 8 June 2023 which claims priority now abandoned application 16/748,560 filed 21 January 2020 which claims priority to PRO 62/794,464 filed 18 January 2019.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
In view of the appeal brief filed on 5 August 2026, PROSECUTION IS HEREBY REOPENED. An amended ground of rejection is set forth below.
To avoid abandonment of the application, appellant must exercise one of the following two options:
(1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or,
(2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid.
A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below:
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 “non-zero radius of curvature” of each aft aerodynamic surface 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 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 12 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. The claims 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. The applicant has amended claim 12 to recite “each aft aerodynamic surface has a non-zero radius of curvature”; yet the specification does not provide any subsequent detail related to this new limitation and the drawings do not provide enough detail to support the introduction of the limitation. As such, the non-zero radius of curvature is consistent with a determination of new matter and should be removed from the claim.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1, 3, and 9-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Evulet (US 2017/0057648).
Examiner’s Note: The specification of Evulet clearly details that figures 8-9 provide illustration of the augmenting airfoils of 702/902 and the various components associated therewith. Figure 10 fully incorporates augmenting airfoils 702/902 per [0033] and the details of [0030]-[0032] into the aircraft which adds tandem wings aft of the augmenting airfoils and main wing detailed in figures 8-9 and paragraphs 30-32; “a secondary airfoil 1010 is placed directly downstream of the augmenting airfoils 702, 902 (emphasis added) such that the fluid flowing over the primary airfoil 701 and the gas stream from the augmenting airfoils flows over the secondary airfoil” [0033]. Additionally, the examiner is not picking and choosing embodiments, as the embodiments utilize the same structure for the various drawings referenced.
- Regarding Claim 1. Evulet discloses a vehicle (fig. 7-10), comprising:
a fuselage (700, illustrated by the figures);
a primary wing (701) coupled to the fuselage (illustrated by fig. 10) and having an upper surface, a distal end and a leading edge (fig. 10 illustrates the aircraft from an isometric view, illustrating the upper surface of the primary wing, the leading edge and the distal end), the upper
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surface having one or more recesses formed therein (as illustrated in annotated fig 10, the wing has a recessed area);
a source of pressurized fluid (“supplied with hotter-than-ambient air (i.e., a pressurized motive gas stream) from, for example, a combustion-based engine” [0030]) coupled to the fuselage (“employed by the vehicle” [0030]);
at least one conduit (704, fig. 7 “conduit” [0030]) in fluid communication with the one or more recesses and the source (“supplied with hotter-than-ambient air (i.e., a pressurized motive gas stream)” [0030]); and
one or more ejectors (703/903, fig. 8-9), each of the one or more ejectors (703/903) having inlets (illustrated by fig 8-9) and being disposed within a respective one of the one or more recesses (see annotated fig. 10, the ejector inlets and outlets are illustrated as recessed from the wing and disposed on the upper surface) and configured to receive pressurized fluid (“supplied with hotter-than-ambient air (i.e., a pressurized motive gas stream)” [0030]) via the at least one conduit (704), wherein each of the one or more recesses (see annotated fig. 10) comprises aerodynamic surfaces (702/902 fig. 9) fore and aft of each respective ejector (703/903, fig. 9-10 illustrate the wing leading edge fore and wing trailing edge aft of the recess and ejector, as well as the airfoils of 702/902 which have leading and trailing edges, as well as upper and lower surfaces for and aft of each respective ejector).
- Regarding Claim 3. Evulet discloses the vehicle of claim 1, wherein the inlets (illustrated by fig 7) of the one or more ejectors (703/903) are positioned on the upper surface to enable ingestion of boundary layer air formed on the leading edge (as illustrated in fig. 7, the ejectors inlets will ingest boundary layer air along the leading edge).
- Regarding Claim 9. Evulet discloses the vehicle of claim 1, further comprising a secondary airfoil (1010) coupled to the fuselage (fig. 10 illustrates the coupling), the secondary airfoil (1010) having a leading edge and located directly downstream of the ejectors (703/903, fig. 10 illustrates the arrangement) such that a gas stream from each ejector (703/903) flows over the leading edge of the secondary airfoil (1010, “gas stream from the ejectors flows over the secondary airfoil” [0033]).
- Regarding Claim 10. Evulet discloses the vehicle of claim 1, wherein the source (“combustion-based engine” [0030]) is disposed in the fuselage (“employed by the vehicle 700” [0030], see claim 10 of Evulet).
- Regarding Claim 11. Evulet discloses the vehicle of claim 1, wherein the fluid produced by the source (“combustion-based engine” [0030]) is the sole means of propulsion of the vehicle (see claim 12 of Evulet).
- Regarding Claim 12. Evulet discloses a vehicle (illustrated by fig. 7-10), comprising:
a fuselage (700, illustrated by the figures);
a primary wing (701) coupled to the fuselage (illustrated by fig. 10) and having an upper surface, a distal end and a leading edge (fig. 10 illustrates the aircraft from an isometric view, illustrating the upper surface of the primary wing, the leading edge and the distal end), the upper
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surface having one or more recesses formed therein (as illustrated in fig 10, the wing has a recessed area);
a source of pressurized fluid (“supplied with hotter-than-ambient air (i.e., a pressurized motive gas stream) from, for example, a combustion-based engine” [0030]) coupled to the fuselage (“employed by the vehicle” [0030]);
at least one conduit (704, fig. 8; “conduit” [0030]) in fluid communication with the one or more recesses and the source (“supplied with hotter-than-ambient air (i.e., a pressurized motive gas stream)” [0030]); and
one or more ejectors (703/903), each of the one or more ejectors (703/903) having inlets (illustrated by fig 7) and being disposed within a respective one of the one or more recesses (see annotated fig. 10, the ejector inlets and outlets are illustrated as recessed from the wing and disposed on the upper surface) and configured to receive pressurized fluid (“supplied with hotter-than-ambient air (i.e., a pressurized motive gas stream)” [0030]) via the at least one conduit (704), the pressurized fluid being received below the upper surface by each of the one or more ejectors (703/903, illustrated by fig. 7) wherein each recess comprises aerodynamic surfaces fore (701) and aft (702/902) of each respective ejector (703/903, fig. 10 illustrates the wing leading edge fore and wing trailing edge aft of the recess and ejector), each aft aerodynamic surface (702/902) is positioned such that fluid from each respective ejector (703/903) flows over each aft aerodynamic surface (702/902), and each aft aerodynamic surface has a non-zero radius of curvature (illustrated by fig. 9, inherent to airfoils as disclosed by Evulet “augmenting airfoil” [0033]).
- Regarding Claim 13. Evulet discloses the aircraft of claim 1, wherein the one or more ejectors (703/903) comprise tapering sidewalls (illustrated by fig 7).
- Regarding Claim 14. Evulet discloses the vehicle of claim 12, wherein the one or more ejectors (703/903) comprise tapering sidewalls (illustrated by fig 7).
- Regarding Claim 15. Evulet discloses the vehicle of claim 1, wherein each aft aerodynamic surface (702/902) is located directly behind each respective ejector (703/903, illustrated by fig. 9)
- Regarding Claim 16. Evulet discloses the vehicle of claim 12, wherein each aft aerodynamic surface (702/902) is located directly behind each respective ejector (703/903, illustrated by fig. 9)
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Evulet (US 2017/0057648) in view of Pouit (US 3,051,413).
- Regarding Claim 6. Evulet discloses the vehicle of claim 1, but does not disclose wherein the size of each ejector is progressively smaller as each ejector is positioned in the primary wing from the fuselage to the distal end.
However, Pouit discloses a similar aircraft (fig. 1-2) wherein the size of each ejector (5) is progressively smaller as each ejector (5) is positioned in the primary wing (3) from the fuselage (2) to the distal end (fig. 2 illustrates the ejectors progressively smaller as the ejector approaches the distal end of the wing). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the wing of Evulet to be modified to provide progressively smaller ejectors as disclosed by Pouit to ensure that the pressurized fluid speed emitted by the ejectors maintained a uniform speed allowing for even lift to be produced and increasing the maneuverability of the aircraft.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Evulet in view of Evulet (US 2018/0370627), hereinafter Evulet-627.
- Regarding Claim 7. Evulet discloses the vehicle of claim 1, but does not disclose the vehicle further comprising a canard wing coupled to the fuselage and positioned forward along the fuselage relative to the primary wing.
However, Evulet-627 discloses a similar vehicle (100, fig. 1) further comprising a canard wing (118/117) coupled to the fuselage (101) and positioned forward along the fuselage (101, fig. 1 illustrates the canards positioned forward) relative to the primary wing (115). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the vehicle of Evulet as modified to incorporate the canards of Evulet-627 to allow for the aircraft to have greater maneuverability and to develop boundary layers of ambient air as disclosed by Evulet-627 in [0045].
Response to Arguments
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Applicant's arguments, see pages 1-4, filed 5 August 2026 have been fully considered but they are not persuasive. An annotated version of fig. 9 is incorporated to provide further clarity of the record.
Argument A. The anticipation rejection is legally deficient because it relies on combining two embodiments the Examiner concedes are distinct.
As noted above in the Examiner’s Note before the 102 rejection, the examiner does not concede that the embodiments are distinct. The examiner points to [0033] of the prior art reference which clearly recites that fig. 10 incorporates tandem wings 1010 into the aircraft which incorporates the augmenting airfoils 702/902 of wing 701, which are detailed prior within the specification in [0031]-[0032]. The details of the augmenting airfoils remain the same, as no additional details are provided for the embodiment of fig. 10 within the prior art reference.
Additionally, the applicant argues case law (Arkley) which relates to picking and choosing various portions of distinct embodiments to support a rejection. In this instance, the examiner is NOT doing this, as the structure of 702/902 incorporated into fig. 10 is clearly the same as that detailed within fig. 8-9 and [0031]-[0032]. Further, the MPEP provides the following:
1. Citing a different portion of a reference to elaborate upon that which has been cited previously.
If the examiner’s answer cites a different portion of an applied reference which goes no farther than, and merely elaborates upon, what is taught in the previously cited portion of that reference, then the rejection does not constitute a new ground of rejection. For example, in In re DBC, 545 F.3d 1373, 89 USPQ2d 1123 (Fed. Cir. 2008), the examiner rejected the claims under 35 U.S.C. 103 over a combination of references, including the English translation of the abstract for a Japanese patent. The examiner cited the English abstract for two claim limitations: (1) Mangosteen rind, and (2) fruit or vegetable juice. The Board affirmed the rejection under 35 U.S.C. 103 over the same references, but instead of citing the abstract, the Board cited an Example on page 16 of the English translation of the Japanese reference, which was not before the examiner. DBC, 545 F.3d at 1381, 89 USPQ2d at 1129. Importantly, the Board cited the Example for the same two claim limitations taught in the abstract, and the Example merely elaborated upon the medicinal qualities of the mangosteen rind (which medicinal qualities were not claimed) and taught orange juice as the preferred fruit juice (while the claim merely recited fruit or vegetable juice). Hence, the Example merely provided a more specific disclosure of the same two generic limitations that were fully taught by the abstract. The court held that this did not constitute a new ground of rejection because "the example in the translation goes no farther than, and merely elaborates upon, what is taught by the abstract." DBC, 545 F.3d at 1382 n.5, 89 USPQ2d at 1130 n.5.
Argument B. The rejection reads out the claim requirement of an aerodynamic surface – part of the recess – located aft of each ejector.
The examiner maintains the aerodynamic surface, which is part of the recess (detailed in annotated fig. 9 and 10), is the augmenting airfoils (702/902), which have upper and lower aerodynamic surfaces aft of each ejector (703/903). The examiner acknowledges that a typo was present in the rejection dated 7 May 2026 which repeated 703/903 twice within the rejection, however, the ejector and augmenting airfoils had been previously identified as 703/903 and 702/902 respectively prior to this typo present in the rejection of claims 15 and 16.
As for the applicant’s arguments that the augmenting airfoils 702/902 are the same as the ejector 703/903, the examiner does not agree, as Evulet clearly distinguishes that these are separate portions of the invention. Fig. 7 and [0030] clearly detail that the nozzle surfaces 705/706 of fig. 7 are an “output structure” with a terminal end 703. This terminal end is the ejector, and as such, is a separate part of the augmenting airfoils 702/902.
The argument related to the disputed limitation is moot, as the examiner is stating that the aerodynamic surfaces aft of each ejector are the surfaces of the augmenting airfoils 702/902, which are part of the recess (annotated fig. 10) and aft of each ejector (703/903).
Argument C. The 102 rejection of claim 12 further lacks any factual finding for the “non-zero radius of curvature” limitation.
The examiner has provided a new grounds of rejection in the form of 112a new matter for the inclusion of the “non-zero radius of curvature” introduced within claim 12. The specification does not provide details related to this new limitation and the existing drawings do not provide grounds for support of this limitation, resulting in the inclusion of new matter. Additionally, while the examiner understands that drawings cannot be considered to be to scale, the examiner contends that any airfoil, such as the augmenting airfoils of Evulet 702/902, contain non-zero radius of curvature, allowing for Evulet to read on the limitation, as 702/902 are disclosed as being airfoils.
Argument D. The 103 rejections of claims 6 and 7 fall with claim 1.
Given the above arguments, which maintain the 102(a)(1) rejections, argument D is moot.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure can be found in PTO-892.
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 TYE W ABELL whose telephone number is (303)297-4408. The examiner can normally be reached on Monday - Thursday 0700-1700 MST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Collins can be reached on 571-272-6886. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from Patent Center. Status information for published applications may be obtained from Patent Center. Status information for unpublished applications is available through Patent Center for authorized users only. Should you have questions about access to Patent Center, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
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) Form at https://www.uspto.gov/patents/uspto-automated- interview-request-air-form.
/TYE WILLIAM ABELL/Primary Examiner, Art Unit 3644
19 August 2026
/TIMOTHY D COLLINS/Supervisory Patent Examiner, Art Unit 3644
Prosecution Insights