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 .
Election/Restrictions and Claim Status
Applicant's election with traverse of Species A1 (Fig. 1) without traverse; B1 (symmetric half shells) with traverse; C1 (disk center piece) with traverse; and D3 (processor of Fig. 19) with traverse in the reply filed on 02/20/26 is acknowledged. The traversal is on the ground(s) that “Applicant is not able to elect a species by canceling any claim.” This is not found persuasive because Applicant does not need to cancel any claims in response to a restriction requirement. Claims to non-elected species need only be withdrawn.
Additionally, restriction on species disclosed, but not claimed, is proper as indicated in at least MPEP 808.01(a) and 806.04(h).
As stated in the office action dated 10/23/25, there is a search burden for the identified species because: the species require a different field of search e.g., employing different search queries (directed towards the different fusion systems in Species A1 vs. A2; directed towards the different half-shell symmetries in Species B1 vs. B2; directed towards the different center pieces/posts in Species C1 vs. C2;; directed towards the different processors in Species D1 vs. D2 vs. D3; and the prior art applicable to one species would not likely be applicable to another species.
4. Claims 1 and 19 are directed to non-elected species C2. Claim 1 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/20/26.
5. The requirement is still deemed proper and is therefore made FINAL.
6. Claims 1-5 and 7-20 are pending. Claims 1 and 19 are withdrawn. Claims 2-5, 7-18, and 20 are examined herein.
Claim Objections
7. Claim 6 has been cancelled. 37 C.F.R. 1.121 provides “No claim text shall be presented for any claim in the claim listing with the status of "canceled" or "not entered." Claim 6 does not comply with this formality. “Canceled and not entered claims must be listed by only the claim number and status identifier, without presenting the text of the claims.”
Drawings
8. 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 XXX must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
9. Claim 3 requires “a hollow toroidal interior chamber that includes an interior surface having a rifling” and “the hollow toroidal interior chamber includes a EM foil.” However, the specification discloses “a rifled toroidal pinch torsatron”([0013-5]) and “[t]he EM foil 152 is not a spiraled wire that is mounted or attached to a ridge of the inner chamber 118. Rather the ridge acts as an EM foil 152 when electricity passes through the inner chamber 118” ([0043]). Further, the figures only provide a reference character for the EM foil, but not any “rifling”. The figures therefore do not show a hollow toroidal interior chamber including both a rifling and an EM foil.
10. Claim 3 recites: “wherein the first half-shell includes a first center post and the second half-shell include a second center post; wherein the first center post of the first half-shell includes a first electrical conductor and the second center post of the second half-shell include a second electrical conductor, wherein the first electrical conductor of the first center post of the first half-shell is in electrical contact with the second electrical conductor of the second center post of the second half-shell.” However, the figures do not show multiple center posts/pieces. For example, elected Figure 1 shows a single center piece (172) between the first half-shell and the second half-shell and therefore does not show the claimed “first center post” and “second center post”. The figures also do not show the first half-shell and the second half-shell each “includ[ing]” an electrical conductor, let alone a “first electrical conductor ... in electrical contact with the second electrical conductor” as recited in the claim.
11. Claim 3 recites “an electronic controller that generates a plurality of pulses of electrical energy”. While Figures 17-19 show controllers, the figures do not appear to show an “electronic controller” of the fusion system which “generates a plurality of pulses of electrical energy” as recited in the claim. For example, no such controller is shown in elected Figure 1.
12. Claims 3 and 13 recite “the electrical sink includes an electrical conditioner electrically coupled to an electrical power distribution grid”. The figures do not show an electrical conditioner or an electrical power distribution grid. For example, elected Figure 1 merely shows the claimed electrical sink as a box.
13. Claim 3 recites “a controller that is electrically coupled to the electrical source, the vacuum pump, the electric power switch, the electric power sink, the electric power source, the gas injector and the fuel injector” and claims 8 and 10 recite “a controller that is electrically coupled to the electrical source”. While Figures 17-19 show controllers, the figures do not show a controller coupled to either electrical source (174), vacuum pump (134), electrical power switch (166), electric power sink (176), gas injector (146), or fuel injector (140) as recited in the claims.
14. Claim 4 recites “a housing”. However, there is no reference character associated with a “housing”. The figures therefore also do not show “a housing having a hollow toroidal interior chamber” as recited in claim 4, “the housing comprising a first half-shell” and “the housing comprising a second half-shell” as recited in claim 5, “an electrical source electrically coupled to the first electrical line that is electrically coupled to the housing” as recited in claim 8, or “the first half-shell and the second half-shell compris[ing] the housing” as recited in claim 15.
15. 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 § 101
16. 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.
17. Claims 2-5, 7-18, and 20 are rejected under 35 U.S.C. 101 because the claimed invention is not supported by either a specific and substantial asserted utility, a credible asserted utility, or a well-established utility.
18. In Brenner v. Manson, the Supreme Court stated that “[t]he basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point—where specific benefit exists in currently available form—the is insufficient justification for permitting an applicant to engross what may prove to be a broad field.” 383 U.S. 519, 534-35 (1966). The Manual of Patent Examining Procedure (MPEP) accordingly explains that the purpose of the utility requirement is “to limit patent protection to inventions that possess a certain level of ‘real world’ value, as opposed to subject matter that represents nothing more than an idea or concept, or is simply a starting point for future investigation or research.” MPEP § 2103, A., I.
19. Thus USPTO has the initial burden of setting forth a reason to doubt an Appellant's presumptively correct assertion of utility. In re Swartz, 232 F.3d 862, 864 (Fed. Cir. 2000). “The PTO may establish a reason to doubt an invention's asserted utility when the written description ‘suggest[s] an inherently unbelievable undertaking or involve[s] implausible scientific principles.”’ In re Cortright, 165 F.3d 1353, 1357 (Fed. Cir. 1999) (quoting In re Brana, 51 F.3d 1560, 1566 (Fed. Cir. 1995)).
20. The asserted utility is: this disclosure can be utilized for many types of uses, including experimental use ([0033]). The claimed invention is “an experimental fusion system.” The disclosure lacks a description of the experimentation performed by the claimed system and does not even indicate what hypothesis the device is intended to test, what data the device produces, and how that data is used for experimentation. The specification further asserts that the claimed invention is “operable to attain nuclear fusion” ([0013-4]; [0077]) and “will allow compact high power pulsed aneutronic fusion energy for experimental use without radiation or nuclear waste with the direct conversion of fusion power to electricity” ([0082]), purposes that are echoed in the claims (claims 3, 13, 20).
21. Specific Utility: A "specific utility" is specific to the subject matter claimed and can "provide a well-defined and particular benefit to the public." In re Fisher, 421 F.3d 1365, 1371, 76 USPQ2d 1225, 1230 (Fed. Cir. 2005). This contrasts with a general utility that would be applicable to the broad class of the invention. Because any fusion reactor can (and is) used for experimentation, this asserted utility is not specific.
22. Substantial Utility: "[A]n application must show that an invention is useful to the public as disclosed in its current form, not that it may prove useful at some future date after further research. Simply put, to satisfy the ‘substantial’ utility requirement, an asserted use must show that the claimed invention has a significant and presently available benefit to the public." Fisher, 421 F.3d at 1371, 76 USPQ2d at 1230. Applicant has provided no indication that there are any present benefit to the public associated with the use of the claimed invention for experimentation. It is noted that “basic research” is an example of an insubstantial utility (MPEP 2107(I)(B)(A)).
23. Credible Utility: Applicant admits that the claimed invention is a torsatron ([0013-5]; [0058]), which is defined as “a stellarator with continuous helical coils.” Yet, the claimed invention does not include such coils. Instead, the claimed invention relies on a new approach: a combination of “EM foil(s) that traverse the toroidal inner chamber ([0043]) to “generat[s] maximum compression force” and “produce a configuration that maximizes stability on the plasma” ([0043]); and rifling “to create helical magnetic fields in the plasma,” which Applicant admits is “seemingly counter intuitive” ([0046]). Applicant also states that the claimed invention “do not include a separate auxiliary heating device to bring the plasma to fusion temperatures” that is a necessary component of known and operable fusion devices (see [0055]). Thus, it is not clear how the present invention achieves the extreme conditions necessary to initiate fusion. The accepted and established conditions necessary for fusion to occur are known as the Lawson criterion. For one, fusion on Earth requires temperatures several orders magnitude greater than 15 million degrees Celsius temperature at the sun’s core. Mainstream nuclear science reckons that the requisite temperature for fusion on Earth is 100 million degrees Celsius or more.1
24. Further, net energy fusion refers to fusion reactions from which more energy is produced than is used or lost in creating the reactions (i.e., “net energy gain”). These reactions would allow for practical applications of fusion energy such as conversion of the fusion energy to electrical energy. Net energy fusion has been “one of the most significant scientific challenges ever tackled by humanity”, driving multi-decade long endeavors by the international fusion community to reach this goal.2 Despite these efforts, there currently exist no nuclear fusion systems capable of producing such useful energy gain for practical applications. As recently as December 2022, the National Ignition Facility (NIF), which is the largest operational thermonuclear fusion system in the U.S., reportedly produced 3.15 MJ of fusion energy from 2.05 MJ of laser light. This was the first ever demonstration in the world of a target producing more energy than was delivered to the target and the results of the experiment have been hailed as “one of the most impressive scientific feats of the 21st century” and a “fusion breakthrough”. However, the laser system itself required 322 MJ of energy to create these fusion reactions, multiple orders of magnitude greater than the energy produced, and therefore operated at an overall net energy loss. Thus, while an achievement in fusion, the experiment was far from a demonstration of practical energy production – as stated by experts in the fusion community3,4,5,6.
25. The Joint European Torus (JET), another thermonuclear fusion system, currently holds the world record for fusion power. Like ITER’s device, JET is also a tokamak utilizing magnetic confinement to produce fusion reactions. JET’s tokamak produced 16 MW of fusion energy from a total input heating power of 24 MW4. Thus, again, although an achievement in fusion, the JET experiment was also far from a demonstration of practical energy production.
26. A skilled artisan, therefore, would have cause to doubt whether the claimed invention is operable as disclosed for the purposes of achieving nuclear fusion and net energy output.
27. For the present invention, which is directed to a way of attempting nuclear fusion at odds with established scientific principles, evidence and acceptance by the scientific community is of crucial importance because the PTO may meet its burden to establish a prima facie case of lack of utility where the written description suggests an unbelievable undertaking or implausible principles. See In re Cortright, 165 F.3d. at 1357.
28. The Examiner cannot find, and Applicant has not supplied, any reputable and peer-reviewed papers in which the mainstream scientific community (i.e., outside of Applicant’s own laboratory) has replicated or built upon Applicant’s purportedly revolutionary discovery. Therefore, the Examiner must conclude that the claimed invention has not been independently reproduced.
29. It is more likely than not that an ordinarily skilled artisan would doubt the effective obtention of a fusion reaction, i.e., causing and capability to perform work as claimed, as well the benefits asserted by Applicants as of the effective date of the claims. Rather, the preponderance of evidence supports a finding that as of the effective date, the claimed apparatus was at most at starting point for future investigation or research. See In re Swartz, 232 F.3d at 864, In re Cortright, 165 F.3d at 1357. The Examiner has provided a preponderance of evidence as to why the asserted operation and utility of Applicant's invention is inconsistent with known scientific principles, making it speculative at best as to whether attributes of the invention necessary to impart the asserted utility are actually present in the invention. See In re Sichert, 566 F.2d 1154, 196 USPQ 209 (CCPA 1977).
30. Thus, there is no specific and substantial, credible, or well-established utility for the claimed invention. The asserted utility of experimentation is nether specific nor substantial and the asserted utilities of nuclear fusion and net energy output are not credible.
Claim Rejections - 35 USC § 112
31. 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.
32. Claims 2-5, 7-18, and 20 are rejected under U.S.C. 112(a). Specifically, because the claimed invention is not supported by a well-established utility or a substantial and credible asserted utility for the same reasons set forth in the rejections under 35 U.S.C. 101 (which are incorporated herein), one skilled in the art clearly would not know how to use the claimed invention.
33. As set forth in MPEP § 2107.01(IV), a deficiency under 35 U.S.C. 101 also creates a deficiency under 35 U.S.C. 112, first paragraph. See In re Brana, 51 F.3d 1560, 34 USPQ2d 1436 (Fed. Cir. 1995). Citing In re Brana, the Federal Circuit noted, “Obviously, if a claimed invention does not have utility, the Specification cannot enable one to use it.”
34. Claims 2-5, 7-18, and 20 are further rejected under U.S.C. 112(a) 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 at the time the application was filed, had possession of the claimed invention. Specifically, a person skilled in the art at the time the application was filed would not have recognized that the inventor was in possession of the invention as claimed in view of the disclosure for the reasons provided in the above 101 rejections, which are incorporated herein.
35. Claims 2-5, 7-18, and 20 are further rejected under 35 U.S.C. 112(a) as failing to comply with the enablement requirement. The claims 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.
36. To be enabling, the disclosure, as filed, must be sufficiently complete to enable a person of ordinary skill in the art to make and a use the full scope of the claimed invention without undue experimentation. It is the Examiner’s position that an undue amount of experimentation would be required to produce an operative embodiment of the claimed invention.
37. To determine whether a given claim is supported in sufficient detail (by combining the information provided in the disclosure with information known in the art) such that any person skilled in the art could make and use the invention as of the filing date of the application without undue experimentation, at least the following factors should be included:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
This standard is applied in accordance with the U.S. Federal Court of Appeals decision In re Wands, 858 F.2d at 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988). See also United States v. Telectronics Inc., 857 F.2d 778, 785, 8 USPQ2d 1217, 1223 (Fed. Cir. 1988), cert. denied, 490 U.S. 1046 (1989).
38. Based on the evidence regarding the aforementioned Wands factors, the specification at the time the application was filed would not have taught one skilled in the art how to achieve any useful result from a rifled toroidal fusion reactor. Specifically:
(A) The breadth of the claims: Applicant’s claims are directed towards a “fusion system” lacking magnetic coil and instead employing rifling and an “EM foil” (claims 2-3, 4, 9). However, the claims fail to specify the specific design aspects necessary to make and use a fusion system capable of achieving nuclear fusion and outputting practical energy. See MPEP § 2164.08.
(B) The nature of the invention: The nature of the invention is a new and untested magnetic confinement fusion device eschewing the conventional techniques known to achieve plasma confinement sufficient to achieve nuclear fusion See MPEP § 2164.05(a).
(C) The state of the prior art: The effects claimed by Applicant have not been verified by the existing body of scientific work. See MPEP § 2164.05(a).
(D) The level of one of ordinary skill: The level of ordinary skill in the art is a skilled artisan who understands the concepts of nuclear fusion and nuclear reactions and would be capable of delving into the scientific literature on the topics and ascertaining how they could be applied to the present invention. As discussed above, all fusion reactors have operated at an overall energy deficit and the effects disclosed by Applicant have not been verified by the existing body of scientific work. Therefore, a skilled artisan would be unable to use the available scientific literature to initiate energy fusion reactions using the claimed system because such reactions have not yet been achieved.See MPEP § 2164.05(b).
(E) The level of predictability in the art: The results of fusion experiments are predictably unpredictable. As discussed above, even the most successful fusion experiments to date have not been able to generate a net energy gain despite over half a century of research. Small variations in a component or parameter of a fusion system can dictate the performance and outcomes of the system. The inventors have therefore set forth the desired result of net energy fusion using an unpredictable mechanism (rifled toroidal fusion) without identifying how one could achieve this result. See MPEP § 2164.03.
(F) The amount of direction provided by the inventor: Applicant fails to provide a detailed explanation as to the structure, materials, and steps for initiating the alleged reactions for useful energy production. Further, as discussed above, fusion systems are complex systems and the successes (or failures) of these systems depend on specific design parameters. However, there is no disclosure of the combination of these specific parameters necessary for achieving nuclear fusion. Applicant's underlying theory is aspirational at best, and no independent experimental results or other persuasive supporting evidence is provided for the record. See MPEP § 2164.03.
(G) The existence of working examples: No working example is provided. See MPEP § 2164.02.
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure: The quantity of experimentation needed is unreasonable because the practical guidance provided is insufficient to enable one to build or operate a working prototype of the invention, and the provided theoretical guidance is insufficient to enable one to understand the underlying sequence of phenomena required to attempt such an endeavor. See MPEP § 2164.06.
39. 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.
40. Claims 2-5, 7-18, and 20 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 pre-AIA the applicant regards as the invention.
41. Regarding claim 2, the phrase “fusion confinement device” lacks meaningful structural limits such that one would be unable to ascertain the metes and bounds of the structure encompassed by the recitation. Additionally, the phrase “hollow toroidal interior chamber” is unclear because a “chamber” refers to an enclosed space . How can an enclosed space additionally be hollow? Or is a different feature intended to be “hollow”? For example, are the “half-shells” recited in later dependent claims (e.g., claim 3) hollow? Relative to what other structure is the chamber “interior”? An “interior” chamber suggests a chamber that is inside some other structure. However, the claims do not recite such other structure. Moreover, the phrase “that includes an interior surface having rifling” is unclear because it is not known whether it is the device or the chamber that has the rifled surface. Finally, the term “approximately equal” is relative and subjective.
42. Regarding claim 3, the recitation “a first half-shell that includes a first hemisphere of the hollow toroidal interior chamber; a second half-shell includes a second hemisphere of the hollow toroidal interior chamber; wherein the first hemisphere of the hollow toroidal interior chamber and the second hemisphere of the hollow toroidal interior chamber form the hollow toroidal interior chamber” is unclear. At a minimum, it is unclear how the half-shells cooperate structurally with the previously recited “fusion confinement device,” as both the device and the shells appear to be responsible for delineating the recited chamber. Further, what does it mean for the half-shells to “include” a hemisphere? For example, do the half-shells enclose a hemisphere? Or do the half-shells form a hemisphere? Are the “hemispheres” intended to refer to physical, tangible structures? Or are these notionally referring to a general space? If referring notionally to a space, how can hemispheres (i.e., a space) “form” a chamber (i.e., an enclosed space)? Is it the half-shells which are intended to form the chamber? The term “toroidal” refers to a torous/toroid (i.e., donut) shape7. However, a “hemisphere” refers to a half of a sphere8. How can a non-spherical shape (i.e., a toroidal shape) have a hemisphere?
43. Regarding claim 3, the recitation “wherein the first half-shell and the second half-shell both have a diameter of at least 1 meter and no more than 3 meters” (p. 6). However, a toroidal shape can be defined by multiple different diameters. For example, the diameter could refer to the diameter of the hole at the center of the toroidal shape. Or, the diameter could refer to the diameter of the entire toroidal shape. Or, the diameter could refer to a diameter of the cross-section of the ring which forms the toroidal shape. Claim 16 is indefinite for the same reasons.
44. Regarding claim 3, there is insufficient antecedent basis for the recitation “wherein the non-ferrous material comprise” because a plurality of non-ferrous materials were previously introduced. Claim 17 is indefinite for the same reasons.
45. Regarding claim 3, the recitation wherein the fusion system is not…” is inconsistent with the specification, which discloses that the claimed device is a toroidal pinch (see [0013]). It is therefore unclear how one would construct a system as claimed that is not a toroidal pinch, if the claimed system is, in fact, such a device. MPEP 2173.03
46. Regarding claim 3, the recitation “an EM foil” is unclear because there is not an adequate definition of structure associated with the recitation. The recitation itself does not have a standard meaning in the art such that one of skill would immediately understand what it is. Further, based on the specification, it is unclear how the EM foil is a different structure than the rifling itself that is already recited. Claim 9 is indefinite for the same reason.
47. Regarding claim 3, the recitation “an electrical source…grid” is indefinite because the relationship between the “electronic controller that generates a plurality of pulses of electrical energy” (p. 7) and the “electrical source”. The term “source” suggests that the latter refers to a feature or structure from which electrical energy is produced. Is (and if so how) the electronic controller connected to any of the first electrical line, the first half-shell, the second electrical line, the second half-shell, and/or the electrical source? Are both the electronic controller and the electrical source intended to generate electrical energy? What components are intended to be positively recited features of the system/electrical sink? Is the “electrical power distribution grid” a feature of the system and/or the electrical sink itself? Or does the electrical conditioner merely need to be capable of electrically coupling to an electrical power distribution grid? Claim 13, which recites the same limitations, is indefinite for the same reasons. The term “electrical source” and the term “electrical sink” are relative terms. This is further unclear because the claim does not clearly recite the flow path/direction of electrical energy and does not clearly identify the features encompassed by the claimed “system”. A “source” typically refers to a mechanism which gives something, while a “sink” typically refers to a mechanism which receives something . Therefore, for example, the electrical conditioner may be viewed as an “electrical source” from the perspective of the electrical power distribution grid (if the electrical conditioner gives electrical power to the grid). By contrast, the electrical conditioner may be viewed as an “electrical sink” from the perspective of the first half-shell (if the electrical conditioner receives electrical energy from the first half-shell). Claims 8, 13, and 14, which recite the same phrases, are indefinite for the same reasons.
48. Regarding claims 4, 5, and 15, the recitations pertaining to the housing, the chamber, and the half shells are indefinite for the same reasons described above with respect to claims 2 and 3.
49. Regarding claim 8, the recitation “that is electrically coupled to the housing” is unclear because it is not known whether the electrical source is coupled to both the first half-shell as recited in claim 7 and the housing as recited in claim 8 or whether the connection recited in claim 7 provides the connection to the housing. The interpretation of claim 8 is further unclear because the structural relationships between the housing and the half-shells is unclear.
50. Regarding claim 9, the recitation “forming along a ride” is unclear and does not adequately delineate the structural relationship required between the foil and the ridge. Additionally, the recitation “when the electrical source…” appears to be a method step of using the device and it is unclear how it pertains to a positively required structural aspect of the claimed system.
51. Regarding claims 3 and 10-12, the claims recite “a controller” without any further structural details. It is therefore unclear what would fall within the scope of the recitation. Claims 3, 11 and 12 are further indefinite because they recite method steps that the controller performs and it is unclear what structure the controller must have to enable it to perform these functions.
52. Regarding claim 20, the recitation is purely functional and its solely directed to a process of using the claimed system. It is thus unclear what additional structure is required to achieve the limitation of claim 20 that is not already present in parent claim 4.
53. Any claim not specifically addressed above is rejected under 35 U.S.C. §112 because it depends on a rejected claim.
Claim Interpretation
54. Many claims recite functional limitations that are process steps performed by the claimed structure or desired results allegedly achieved by the claimed system. These clauses as well as other statements of intended use, do not serve to patentably distinguish the claimed structure over that of the reference as long as the structure of the cited references is capable of performing the alleged intended use. See MPEP 2111-2115. As stated in MPEP 2114(II):
“[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original).
A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
55. The devices disclosed by the cited prior art references are capable of being used in the same manner and for the same desired results as the claimed invention. Examiner further notes, if the fusion system of the present invention is allegedly capable of producing an aneutronic fusion reaction, it would follow that a prior art system having the same structure, such as the systems of the below cited prior art references, would also be capable of allegedly producing these reactions.
56. Applicant should note that while Examiner has shown that the claimed invention is obvious over the prior art, the prior art does not enable the claimed inventions for the reasons set forth above. “Even if a reference discloses an inoperative device, it is prior art for all that it teaches.” Beckman Instruments v.LKB Produkter AB, 892 F.2d 1547, 1551, 13 USPQ2d 1301, 1304 (Fed. Cir. 1989). Therefore, “a non-enabling reference may qualify as prior art for the purpose of determining obviousness under 35 U.S.C. 103.” Symbol Techs. Inc. v. Opticon Inc., 935 F.2d 1569, 1578, 19 USPQ2d 1241, 1247 (Fed. Cir. 1991). MPEP § 2121.
56. It should be noted, as stated in MPEP 2173.06, “where there is a great deal of confusion and uncertainty as to the proper interpretation of the limitations of a claim, it would not be proper to reject such a claim on the basis of prior art. As stated in In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. §103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.” Therefore, no art rejections have been made for claims 3, 9-14, and 20.
Claim Rejections - 35 USC § 103
57. 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 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.
58. For applicant's benefit, the portions of the reference(s) relied upon in the below rejections have been cited to aid in the review of the rejections. While every attempt has been made to be thorough and consistent within the rejection, it is noted that prior art must be considered in its entirety, including disclosures that teach away from the claims. See MPEP 2141.02 VI.
59. 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.
60. Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Bass et al., US 4,236,964 in view of Josephson, US 3,156,621 in further view of Fluhler, US 2022/0124903.
61. Regarding claim 2, Bass discloses an experimental fusion system (Fig. 1; column 2, lines 7-14) comprising: a fusion confinement device (10) enclosing a hollow toroidal interior chamber (11), noting that the chamber “is filled with a suitable gas such as deuterium” (column 4, lines 4-5). Bass is silent as to the mechanism responsible for gas filling. Josephson teaches a plasma confinement device (column 1, lines 10-15) enclosing a toroidal chamber (see Fig. 1)that includes an interior surface having grooves (40) and comprising a fuel injector (“gas inlet”) mounted in the fusion confinement device. One of ordinary skill in the art at the time of invention/filing would have found it obvious to combine the fuel injector of Josephson with the device of Bass for the predictable purpose of accomplishing the “filling with a suitable gas such as deuterium” that is required for operating the device of Bass. The injector of Josephson in combination with Bass is capable of injecting any “suitable gas,” which a skilled artisan would recognize includes a mixture of D-He3, because such a mixture is well-known to be “suitable” for nuclear fusion. Bass does not disclose a rifled chamber surface. Fluhler teaches a plasma confinement device ([0002-3]) comprising an interior surface having rifling (1020: Fig. 12; [0137]) for the predictable purpose of imparting angular momentum to the plasma sheath, thereby increasing plasma mass fraction and reducing turbulence. Accordingly, one of ordinary skill in the art at the time of invention/filing would have found it obvious to employ the helical rifling taught by Fluhler to the toroidal chamber of Bass.
62. Claims 4, 5, 7, 8, and 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over Bass et al., US 4,236,964 in view of Fluhler, US 2022/0124903.
63. Regarding claim 4, Bass discloses an experimental fusion system (Fig. 1; column 2, lines 7-14) comprising: a housing (10) enclosing a hollow toroidal interior chamber (11). Bass does not disclose a rifled chamber surface. Fluhler teaches a plasma confinement device ([0002-3]) comprising an interior surface having rifling (1020: Fig. 12; [0137]) for the predictable purpose of imparting angular momentum to the plasma sheath, thereby increasing plasma mass fraction and reducing turbulence. Accordingly, one of ordinary skill in the art at the time of invention/filing would have found it obvious to employ the helical rifling taught by Fluhler to the toroidal chamber of Bass.
64. Regarding claim 5, Bass as modified by Fluhler makes claim 4 obvious. Bass further discloses a device wherein the housing comprises a first half-shell that includes a first hemisphere of the hollow toroidal interior chamber; and the housing comprising a second half-shell that includes a second hemisphere of the hollow toroidal interior chamber (see Fig. 1).
65. Regarding claim 7, Bass as modified by Fluhler makes claim 5 obvious. Bass further discloses a device further comprising : a first electrical line electrically coupled to the first half-shell (line from 130 to top half of 10); and a second electrical line electrically coupled to the second half-shell (line from bottom half of 10 to 130).
66. Regarding claim 8, Bass as modified by Fluhler makes claim 7 obvious. Bass further discloses a device further comprising an electrical source electrically coupled to the first electrical line that is electrically coupled to the housing (130).
67. Regarding claim 15, Bass as modified by Fluhler makes claim 5 obvious. Bass further discloses a device wherein the first half-shell and the second half-shell comprise the housing; and wherein the first half-shell and the second half-shell are fastened together; wherein the first half-shell and the second half-shell are symmetrical (see Fig. 1).
68. Regarding claim 16, Bass as modified by Fluhler makes claim 5 obvious. Bass is silent as to the absolute dimensions of its device. However, Bass discloses a plasma having an outside diameter of 1.02 m (7:43-44), As the housing encloses the plasma, the housing would have a diameter slightly greater than 1.02 m, which falls within the claimed range of 1-3 m. Additionally, where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. MPEP 2144.04(IV)(A). A POSA would have found it obvious to select desired dimensions of the housing (and therefore the half-shells) based on plasma parameters.
69. Regarding claim 17, Bass as modified by Fluhler makes claim 5 obvious. Bass does not disclose the first half-shell and the second half-shell are made of a non-ferrous material comprising an aluminum or scandium alloy with no more than 1% scandium, Bass discloses the half-shells are made of a current carrying material (3:61-67). It would have been obvious to a POSA to have the half-shells made of a non-ferrous material as recited in claim 17 since it has been held to be within the general skill of a worker in the art to select known material on the basis of its suitability for the intended use as a matter of obvious design choice. See In re Leshin, 125 USPQ 416. The skilled artisan would recognize that aluminum is an electrically conductive material , and would therefore be suitable as a current carrying conductor for Bass’s half-shells.
70. Regarding claim 18, Bass as modified by Fluhler makes claim 5 obvious. Bass further discloses a device further comprising: a first flange on an outer perimeter of the first half-shell and that extends away from a center axis of the experimental fusion system; and a second flange on an outer perimeter of the second half-shell and that extends away from the center axis of the experimental fusion system (see Fig. 1).
71. Regarding claim 19, Bass as modified by Fluhler makes claim 5 obvious. Bass further discloses a device further comprising an insulator that is positioned between the first flange of the first half-shell and the second half-shell of the second half-shell; and a conductive center piece that is between an inner perimeter of the first half-shell and an inner perimeter of the second half-shell, but is absent between the center axis and hemispheres of the first half-shell and the second half-shell, putting the first half-shell in electrical contact with the second half-shell (see Figs. 1 and 2A.
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Conclusion
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.
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/SHARON M DAVIS/Primary Examiner, Art Unit 3646
1 The Science of Fusion, attached hereto.
2 https://www.llnl.gov/news/star-power-blazing-path-fusion-ignition
3 https://www.llnl.gov/news/shot-ages-fusion-ignition-breakthrough-hailed-one-most-impressive-scientific-feats-21st
4 https://www.nature.com/articles/d41586-022-04440-7
5 https://physicstoday.scitation.org/do/10.1063/PT.6.2.20221213a/full/
6 https://www.aip.org/fyi/2022/national-ignition-facility-achieves-long-sought-fusion-goal
7 https://www.merriam-webster.com/dictionary/toroidal
8 https://dictionary.cambridge.org/us/dictionary/english/hemisphere
Prosecution Insights