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 .
Status Of Claims
This Office Action is in response to an amendment received 11/22/2023 in which Applicant lists claims 1-2 as being original, and claims 3-10 as being currently amended. It is interpreted by the examiner that claims 1-10 are pending.
If applicant is aware of any relevant prior art, or other co-pending application not already of record, they are reminded of their duty under 37 CFR 1.56 to disclose the same.
Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on 4/13/2026 is acknowledged. The traversal is on the grounds that there was no lack of unity made during the international stage and therefore there is no undue burden for the PTO to search all of the claims. This is not found persuasive because each of the listed Groups I-IV include technical features not required by the other groups. Additionally, each of Groups are not linked by a special technical feature since the prior art of record teaches the technical features of claim 1 and therefore the features of claim 1 are not special technical features which make a contribution over the prior art. Further, the separate Groups require different search and evaluation of the prior art (for example, searching different classes/subclasses or electronic resources, or employing different search queries), and/or the prior art applicable to one invention would not likely be applicable to another invention. Therefore, undue burden for searching all of the claims of the separate Groups has been shown.
The requirement is still deemed proper and is therefore made FINAL.
Claims 4-9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to at least one nonelected Group, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 4/13/2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The Information Disclosure Statement(s) (IDS) filed on 11/22/2023 was considered.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because the uses phases that can be implied such as “[t]he invention relates”, and includes legal phraseology such as “comprising”, “consisting of” and “said”. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Other Related Art
This prior art, made of record, but not relied upon is considered pertinent to applicant's disclosure since the following references have similar structure and/or use similar optical elements to what is claimed and/or disclosed in the instant application:
Shen et al., US 2021/0191017 A1, discloses a daytime radiative cooling device including alternating layers A (TiO2) and layers B (SiO2), as set forth in at least claim 1 (see at least the abstract, figure 1, paras. [0010]-[0012]);
Tonooka et al., US 2010/0132756 A1, discloses an infrared reflective device including alternating layers A (TiO2) and layers B (SiO2), as set forth in at least claim 1 (see at least figures 4(a)-4(b), paras. [0074]-[0078]); and
Hebrink et al., US 2021/0018713 A1, discloses a daytime radiative cooling device including alternating polymeric layers with different refractive indices, wherein the number of alternating layers may be greater than 70 (see at least figure 4, paras. [0069]-[0084]).
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.
Claims 1-2 are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as based on a disclosure which is not enabling. The disclosure does not enable one of ordinary skill in the art to practice the invention with fewer than 70 layers in the reflective portion, which is critical or essential to the practice of the invention but not included in the claim(s). See In re Mayhew, 527 F.2d 1229, 188 USPQ 356 (CCPA 1976). Figure 17 of the disclosure, as well as pages 40-41 of the disclosure which describe figure 17, disclose that the radiative cooling/refrigeration effect is obtained when the reflective portion has at least 70 layers. Additionally, the working examples set forth on pages 41-51 of the disclosure all have at least 70 layers in the reflective portion (see at least Table 4 wherein the example includes 184 layers in the reflective portion; see at least Table 5 wherein the example includes 184 layers in the reflective portion). Therefore, the disclosure provides enablement for producing the daytime radiative cooling effect with a device wherein the reflective portion has at least 70 layers.
Claim 2 is rejected for being not enabling for at least the same reasons as claim 1, from which claim 2 depends. It is noted that claim 3 depends from claim 1, but is not reject since claim 3 includes structure which is enabling.
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.
Claims 1-2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shen et al., CN 110274326 B, of record by applicant (hereafter Shen).
Regarding claim 1, Shen discloses a device comprising (open language) a reflective portion for the wavelengths from 260 nm to 2,500 nm (see at least figure 3, para. [n0044]; It is noted that no specific percentage of reflection is recited, and it is not recited that every wavelength from 260nm to 2500nm must have a specific amount of reflection. Therefore, any amount of reflection of any wavelength from 260nm to 2500nm is considered reflection “for the wavelengths from 260 nm to 2,500 nm”) consisting of (closed language) an alternating superposition of layers A and of layers B, said layers A consisting of (closed language) at least one material A selected from among Nb2O5, TiO2 and Ta2O5 (see at least figure 2, elements 2-6, the abstract and paragraphs [n0008]-[n0010], [n0056], [n0059]) said layers B consisting of (closed language) at least one material B selected from among SiO2 and Al2O3 (see at least figure 2, elements 2-6, the abstract and paragraphs [n0008]-[n0010], [n0056], [n0059]).
The preamble fails to structurally limit the body of the claim. Shen meets all of the structural limitations required by the claim in support thereof. As such, Shen must support “daytime radiative cooling” in the same way as the structure of the claim.
The recitation “daytime radiative cooling” has not been given significant patentable weight under MPEP Chapter 2111.02 [R-3] – Effect of Preamble because the recitation occurs in the preamble where it merely recites the intended use of a structure and fails to structurally limit the body of the claim.
MPEP 2112.02 (II) states that “statements in the preamble reciting the purpose of intended use of the claimed invention must be evaluated to determine whether the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art. If so, then the recitation serves to limit the claims.” Additionally, In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962), is a case where the “statement of intended use in an apparatus claim did not distinguish over the prior art apparatus”.
In the instant case, the listed claims are made with regard to an apparatus whose intended use does not distinguish it from the prior art apparatus, as the use of the device, as claimed, cannot be considered a structural or manipulative difference from devices in the prior art without evidence present in the disclosure and set forth in the claims as to how this intended use of the device renders it structurally or manipulatively different from the prior art.
Regarding claim 2, Shen discloses the limitations of claim 1, and wherein each layer A and each layer B has a respective and independent thickness from 1 to 1,750 nm (see at least paragraphs [n0024], [n0056], [n0059]).
Claims 1-2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Alim et al., “Planar Structure with High Spectrally-Selective Emittance for Passive Radiative Cooling”, 2020 IEEE Photonics Conference (IPC), 28 September 2020 – 01 October 2020, pages 1-2, of record by applicant (hereafter Alim).
Regarding claim 1, Alim discloses a device comprising (open language) a reflective portion for the wavelengths from 260 nm to 2,500 nm (see at least page 1; It is noted that no specific percentage of reflection is recited, and it is not recited that every wavelength from 260nm to 2500nm must have a specific amount of reflection. Therefore, any amount of reflection of any wavelength from 260nm to 2500nm is considered reflection “for the wavelengths from 260 nm to 2,500 nm”) consisting of (closed language) an alternating superposition of layers A and of layers B, said layers A consisting of (closed language) at least one material A selected from among Nb2O5, TiO2 and Ta2O5 (see at least page 2, figure 1, the two 50nm thick TiO2 layers) said layers B consisting of (closed language) at least one material B selected from among SiO2 and Al2O3 (see at least page 2, figure 1, the two 100nm thick SiO2 layers).
The preamble fails to structurally limit the body of the claim. Shen meets all of the structural limitations required by the claim in support thereof. As such, Shen must support “daytime radiative cooling” in the same way as the structure of the claim.
The recitation “daytime radiative cooling” has not been given significant patentable weight under MPEP Chapter 2111.02 [R-3] – Effect of Preamble because the recitation occurs in the preamble where it merely recites the intended use of a structure and fails to structurally limit the body of the claim.
MPEP 2112.02 (II) states that “statements in the preamble reciting the purpose of intended use of the claimed invention must be evaluated to determine whether the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art. If so, then the recitation serves to limit the claims.” Additionally, In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962), is a case where the “statement of intended use in an apparatus claim did not distinguish over the prior art apparatus”.
In the instant case, the listed claims are made with regard to an apparatus whose intended use does not distinguish it from the prior art apparatus, as the use of the device, as claimed, cannot be considered a structural or manipulative difference from devices in the prior art without evidence present in the disclosure and set forth in the claims as to how this intended use of the device renders it structurally or manipulatively different from the prior art.
Regarding claim 2, Alim discloses the limitations of claim 1, and wherein each layer A and each layer B has a respective and independent thickness from 1 to 1,750 nm (see at least page 2, figure 1, the two 50nm thick TiO2 layers, and the two 100nm thick SiO2 layers).
Claims 1-2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Raman et al., US 2015/0338175 A1, of record by applicant (hereafter Raman).
Regarding claim 1, Raman discloses a device comprising (open language) a reflective portion for the wavelengths from 260 nm to 2,500 nm (see at least paragraphs [0033], [0037]-[0042], [0104]-[0105]; It is noted that no specific percentage of reflection is recited, and it is not recited that every wavelength from 260nm to 2500nm must have a specific amount of reflection. Therefore, any amount of reflection of any wavelength from 260nm to 2500nm is considered reflection “for the wavelengths from 260 nm to 2,500 nm”) consisting of (closed language) an alternating superposition of layers A and of layers B, said layers A consisting of (closed language) at least one material A selected from among Nb2O5, TiO2 and Ta2O5 (see at least figures 1, 3, 10A, 11A-11B, the TiO2 layers of the alternating TiO2/SiO2 structure, paragraphs [0033], [0037]-[0042], [0104]-[0105]) said layers B consisting of (closed language) at least one material B selected from among SiO2 and Al2O3 (see at least figures 1, 3, 10A, 11A-11B, the SiO2 layers of the alternating TiO2/SiO2 structure, paragraphs [0033], [0037]-[0042], [0104]-[0105]).
The preamble fails to structurally limit the body of the claim. Shen meets all of the structural limitations required by the claim in support thereof. As such, Shen must support “daytime radiative cooling” in the same way as the structure of the claim.
The recitation “daytime radiative cooling” has not been given significant patentable weight under MPEP Chapter 2111.02 [R-3] – Effect of Preamble because the recitation occurs in the preamble where it merely recites the intended use of a structure and fails to structurally limit the body of the claim.
MPEP 2112.02 (II) states that “statements in the preamble reciting the purpose of intended use of the claimed invention must be evaluated to determine whether the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art. If so, then the recitation serves to limit the claims.” Additionally, In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962), is a case where the “statement of intended use in an apparatus claim did not distinguish over the prior art apparatus”.
In the instant case, the listed claims are made with regard to an apparatus whose intended use does not distinguish it from the prior art apparatus, as the use of the device, as claimed, cannot be considered a structural or manipulative difference from devices in the prior art without evidence present in the disclosure and set forth in the claims as to how this intended use of the device renders it structurally or manipulatively different from the prior art.
Regarding claim 2, Raman discloses the limitations of claim 1, and wherein each layer A and each layer B has a respective and independent thickness from 1 to 1,750 nm (see at least figures 1, 3, 10A, 11A-11B, the thicknesses of the SiO2 and TiO2 layers of the alternating TiO2/SiO2 structure, paragraphs [0033], [0037]-[0042], [0104]-[0105]).
Claims 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Russell et al., US 6,391,400 B1 (hereafter Russell).
Regarding claim 1, Russell discloses a device comprising (open language) a reflective portion for the wavelengths from 260 nm to 2,500 nm (see at least the abstract, figures 2A-2B, elements L, H, L’ and H’, col.29, lines 32-37, and columns 38-53, describing Examples 1-11 in Tables 4-16; It is noted that no specific percentage of reflection is recited, and it is not recited that every wavelength from 260nm to 2500nm must have a specific amount of reflection. Therefore, any amount of reflection of any wavelength from 260nm to 2500nm is considered reflection “for the wavelengths from 260 nm to 2,500 nm”) consisting of (closed language) an alternating superposition of layers A and of layers B, said layers A consisting of (closed language) at least one material A selected from among Nb2O5, TiO2 and Ta2O5 (see at least the abstract, figures 2A-2B, elements L, H, L’ and H’, col.29, lines 32-37, and columns 38-53, describing Examples 1-11 in Tables 4-16, the TiO2/SiO2 structure) said layers B consisting of (closed language) at least one material B selected from among SiO2 and Al2O3 (see at least the abstract, figures 2A-2B, elements L, H, L’ and H’, col.29, lines 32-37, and columns 38-53, describing Examples 1-11 in Tables 4-16, the TiO2/SiO2 structure).
The preamble fails to structurally limit the body of the claim. Shen meets all of the structural limitations required by the claim in support thereof. As such, Shen must support “daytime radiative cooling” in the same way as the structure of the claim.
The recitation “daytime radiative cooling” has not been given significant patentable weight under MPEP Chapter 2111.02 [R-3] – Effect of Preamble because the recitation occurs in the preamble where it merely recites the intended use of a structure and fails to structurally limit the body of the claim.
MPEP 2112.02 (II) states that “statements in the preamble reciting the purpose of intended use of the claimed invention must be evaluated to determine whether the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art. If so, then the recitation serves to limit the claims.” Additionally, In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962), is a case where the “statement of intended use in an apparatus claim did not distinguish over the prior art apparatus”.
In the instant case, the listed claims are made with regard to an apparatus whose intended use does not distinguish it from the prior art apparatus, as the use of the device, as claimed, cannot be considered a structural or manipulative difference from devices in the prior art without evidence present in the disclosure and set forth in the claims as to how this intended use of the device renders it structurally or manipulatively different from the prior art.
Regarding claim 2, Russell discloses the limitations of claim 1, and wherein each layer A and each layer B has a respective and independent thickness from 1 to 1,750 nm (see at least the abstract, figures 2A-2B, elements L, H, L’ and H’, col.29, lines 32-37, and columns 38-53, describing Examples 1-11 in Tables 4-16, the TiO2/SiO2 structure).
Regarding claim 3, Russell discloses the limitations of claim 1, and wherein the reflective portion comprises at least 70 layers (see at least col. 19, line 26 through col. 20, line 18).
Claim Rejections - 35 USC § 103
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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Raman et al., US 2015/0338175 A1, of record by applicant (hereafter Raman) in view of Lechermann et al., WO 2009/121554 A1 (hereafter Lechermann).
Regarding claim 3, Raman does not specifically disclose that the reflective portion comprises at least 70 layers.
However, Lechermann an infrared reflecting multilayer structure including alternating TiO2 and SiO2 layers wherein, for broadband heat reflection of the IR spectrum between 800nm and 1350nm, between 150 to 180 layers are preferred (see at least pages 2-3 of the English machine translation of Lechermann).
Therefore, it would have been obvious to an ordinarily skilled artisan before the effective filing date of the claimed invention to modify the device of Raman to include the teachings of Lechermann so that the reflective portion comprises at least 70 layers, for the purpose of achieving the desired reflection characteristics for the desired spectral range.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEREK S. CHAPEL whose telephone number is (571)272-8042. The examiner can normally be reached M-F 9:30am-6pm.
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/Derek S. Chapel/Primary Examiner, Art Unit 2872
Derek S. CHAPEL
Primary Examiner
Art Unit 2872
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