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 .
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
The non-statutory 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 non-statutory 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 non-statutory 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 §§ 706.02(l)(1) - 706.02(l)(3) 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 non-statutory 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 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/process/file/efs/guidance/eTD-info-I.jsp.
Claim 1 is rejected on the grounds of non-statutory double patenting as being unpatentable over Claim 13 of U.S. Pat. No. 11,233,332 of Hong et al. (reference patent). Although the claims at issue are not identical, they are not patentably distinct from each other because each of the elements of Claim 1 is met by Claim 13 of the patent, as correlated in the table below.
Claim Number of Present Application
Claim Element of Present Application
Corresponding Claim Language of U.S. Pat. No. 11,233,332 of Hong et al.
Notes
1
An active meta device comprising
Claim 13 recites: A light absorber, comprising
a metal reflective plate
a reflective layer … that is comprised of a metal
an insulating layer on the metal reflective plate
an insulating pattern that is comprised of an insulating material and that has a first portion which is disposed on and completely covers the reflective layer
a first modulation line block provided on one side of the insulating layer
a first nano-antenna that is disposed on the insulating pattern
a second modulation line block provided on another side of the insulating layer facing the first modulation line block
a second nano-antenna that is spaced apart from the first nano-antenna and that is disposed within [a] second opening [wherein the] second opening … is a further depression within the insulating pattern
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 8 and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hong et al., U.S. Pat. Appl. Pub. No. 2018/0323512 A1.
Regarding Claim 1, Hong discloses: An active meta device comprising (the Office notes that the term “comprising” is an open-ended transitional phrase which permits additional elements or features):
a metal reflective plate (reflective layer 120, which may be in the form of a flat plate, and may include metal; paragraph [0036] and FIGS. 5, 7 of Hong);
an insulating layer on the metal reflective plate (insulating pattern 130 on reflective layer 120; FIGS. 5, 7 of Hong);
a first modulation line block provided on one side of the insulating layer (first antenna part 150a is provided at a left side of insulating pattern 130; FIGS. 5, 7 of Hong; see annotated FIGS. 5, 7 below which include a dashed line which demarcates a left-side and right-side of insulating pattern 130); and
a second modulation line block provided on another side of the insulating layer facing the first modulation line block (second antenna part 150b is provided at a right side of insulating pattern 130; FIGS. 5, 7 of Hong; see annotated FIGS. 5, 7 below which include a dashed line which demarcates a left-side and right-side of insulating pattern 130).
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Regarding Claim 8, Hong discloses the limitations of Claim 1 and further discloses: wherein the first modulation line block and the second modulation line block each have a line width of 44.4 nm to 350 nm (a width w2 of second antenna part 150b may be 100 nm and a width w1 of the opening may be 300 nm, and thus a radial width of first antenna part 150a [at either side of second antenna part 150b] may be 100 nm [in a symmetrical device, as shown in FIGS. 5, 7 of Hong]; paragraph [0053]-[0055] and FIGS. 4-7 of Hong).
Regarding Claim 9, Hong discloses the limitations of Claim 1 and further discloses: wherein the first modulation line block and the second modulation line block have a separation distance of 50 nm to 350 nm (in an alternate characterization of Hong, the left-side and right-side of conductive pattern 140 may be identified as the first and second modulation line blocks, and wherein the width of the first opening may be between 1 nm and 300 nm; paragraph [0053] and FIG. 7 of Hong).
Claims 1, 2 and 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kothari et al., U.S. Pat. Appl. Pub. No. 2012/0042931 A1.
Regarding Claim 1, Kothari discloses: An active meta device comprising (the Office notes that the term “comprising” is an open-ended transitional phrase which permits additional elements or features):
a metal reflective plate (back electrode 1020, which may be a metal layer; paragraph [0067] and FIGS. 10G, 10H of Kothari);
an insulating layer on the metal reflective plate (TCO 1040, which may be an oxide; paragraph [0069] and FIGS. 10G, 10H of Kothari);
a first modulation line block provided on one side of the insulating layer (left-side interferometric modulator [IMOD] stack/mask 300; paragraphs [0016], [0075]-[0079] and FIGS. 10G, 10H of Kothari); and
a second modulation line block provided on another side of the insulating layer facing the first modulation line block (right-side interferometric modulator [IMOD] stack/mask 300; paragraphs [0016], [0075]-[0079] and FIGS. 10G, 10H of Kothari).
Regarding Claim 2, Kothari discloses the limitations of Claim 1 and further discloses: wherein the first modulation line block and the second modulation line block each include: a transparent conducting layer; and a nano-antenna pattern on the transparent conducting layer (left-side and right-side interferometric modulator [IMOD] stacks/masks 300 each include optical resonant cavity 302, which may be indium tin oxide, and absorber layer 301 thereon; paragraphs [0016], [0045], [0069], [0075]-[0078] and FIGS. 10G, 10H of Kothari).
Regarding Claim 4, Kothari discloses the limitations of Claim 2 and further discloses: wherein the transparent conducting layer includes indium tin oxide (ITO) (optical resonant cavity 302 may be indium tin oxide; paragraphs [0016], [0045], [0069], [0075]-[0078] and FIGS. 10G, 10H of Kothari).
Claims 1, 2, 5, 6 and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kim et al., US 2023/0060203 A1.
Regarding Claim 1, Kim discloses: An active meta device comprising (the Office notes that the term “comprising” is an open-ended transitional phrase which permits additional elements or features):
a metal reflective plate (contact electrodes CNE1, CNE2; paragraph [0095] and FIG. 3 of Kim);
an insulating layer on the metal reflective plate (insulating layer INS1 on contact electrodes CNE1, CNE2; paragraph [0095] and FIG. 3 of Kim);
a first modulation line block provided on one side of the insulating layer (first pixel electrode ELT1 at a left-side of insulating layer INS1; paragraph [0095] and FIG. 3 of Kim); and
a second modulation line block provided on another side of the insulating layer facing the first modulation line block (second pixel electrode ELT2 at a right-side of insulating layer INS1; paragraph [0095] and FIG. 3 of Kim).
Regarding Claim 2, Kim discloses the limitations of Claim 1 and further discloses: wherein the first modulation line block and the second modulation line block each include: a transparent conducting layer; and a nano-antenna pattern on the transparent conducting layer (first and second pixel electrodes ELT1, ELT2 may include a stack of indium tin oxide [ITO] / silver [Ag] / indium tin oxide [ITO]; paragraphs [0102]-[0104] and FIG. 3 of Kim).
Regarding Claim 5, Kim discloses the limitations of Claim 2 and further discloses: wherein the first modulation line block and the second modulation line block each further include an opaque metal layer between the transparent conducting layer and the nano-antenna pattern (first and second pixel electrodes ELT1, ELT2 may include a stack of indium tin oxide [ITO] / silver [Ag] / indium tin oxide [ITO]; paragraphs [0102]-[0104] and FIG. 3 of Kim).
Regarding Claim 6, Kim discloses the limitations of Claim 5 and further discloses: wherein the opaque metal layer includes silver (first and second pixel electrodes ELT1, ELT2 may include a stack of indium tin oxide [ITO] / silver [Ag] / indium tin oxide [ITO]; paragraphs [0102]-[0104] and FIG. 3 of Kim).
Regarding Claim 10, Kim discloses the limitations of Claim 1 and further discloses: wherein the insulating layer includes alumina (insulating layer INS1 may include aluminum oxide [AlOx]; paragraph [0113] and FIG. 3 of Kim).
Claims 1 and 7 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Josberger et al., US 2024/0405132 A1.
Regarding Claim 1, Josberger discloses: An active meta device comprising (the Office notes that the term “comprising” is an open-ended transitional phrase which permits additional elements or features):
a metal reflective plate (metal layer 208; paragraph [0061] and FIGS. 2, 3A of Josberger);
an insulating layer on the metal reflective plate (dielectric spacer layer 206 on metal layer 208; paragraph [0061] and FIGS. 2, 3A of Josberger);
a first modulation line block provided on one side of the insulating layer (metal pillar 202A at a left-side of dielectric spacer layer 206; paragraph [0061] and FIGS. 2, 3A of Josberger); and
a second modulation line block provided on another side of the insulating layer facing the first modulation line block (metal pillar 202B at a right-side of dielectric spacer layer 206; paragraph [0061] and FIGS. 2, 3A of Josberger).
Regarding Claim 7, Josberger discloses the limitations of Claim 1 and further discloses: wherein the first modulation line block and the second modulation line block are alternately arranged with a pitch of at least 700 nm (pitch may range from 200 nanometers to 700 nanometers; paragraph [0068] and FIGS. 2, 3A of Josberger).
Claims 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Han et al., US 2016/0223723 A1.
Regarding Claim 1, Han discloses: An active meta device comprising (the Office notes that the term “comprising” is an open-ended transitional phrase which permits additional elements or features):
a metal reflective plate (metal layer 110; paragraph [0054] and FIGS. 1-3, 8, 9 of Han);
an insulating layer on the metal reflective plate (dielectric material layer 150 may be on metal layer 110; paragraphs [0054], [0056] and FIGS. 1-3, 8, 9 of Han);
a first modulation line block provided on one side of the insulating layer (permittivity variation layer 130 may be on dielectric material layer 150, and the combined layers 130 and 170, i.e., a first nano-antenna layer 170 and the region of permittivity variation layer 130 below it [which may be together identified as the claimed “first modulation line block”] are provided at one side of dielectric material layer 150; paragraphs [0054], [0056] and FIG. 8 of Han); and
a second modulation line block provided on another side of the insulating layer facing the first modulation line block (combined layers 130 and 170, i.e., a second nano-antenna layer 170 and the region of permittivity variation layer 130 below it [which may be together identified as the claimed “second modulation line block”] are provided at another side of dielectric material layer 150; paragraphs [0054], [0056] and FIG. 8 of Han; see annotated FIG. 8 of Han provided below for illustrative purposes).
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Regarding Claim 2, Han discloses the limitations of Claim 1 and further discloses: wherein the first modulation line block and the second modulation line block each include: a transparent conducting layer; and a nano-antenna pattern on the transparent conducting layer (as explained above in the rejection of Claim 1, the combined layers 130 and 170, i.e., a nano-antenna layer 170 and the region of permittivity variation layer 130 below it, may be together identified as a claimed “modulation line block”, and wherein permittivity variation layer 130 may be a transparent conductive oxide [TCO] such as ITO [indium tin oxide]; paragraphs [0054], [0056], [0061] and FIG. 8 of Han).
Regarding Claim 3, Han discloses the limitations of Claim 2 and further discloses: wherein a first voltage is biased between the metal reflective plate and the nano-antenna pattern of the first modulation line block, and a second voltage is biased between the metal reflective plate and the nano-antenna pattern of the second modulation line block (metal layer 110 may apply a voltage between the metal layer 110 and the plasmonic nano-antenna layer 170, wherein voltage applying means 110 may be configured to independently apply voltages between the metal layer 110 and each of the plurality of nano-antenna lines NAL; paragraphs [0063], [0064] and FIGS. 1-3, 8, 9 of Han).
Examiner Note – Consider Entirety of References
Although various text and figures of the cited references have been specifically cited in this Office Action to show disclosures and teachings which correspond to specific claim language, Applicant is advised to consider the complete disclosure of each reference, including portions which have not been specifically cited by the Examiner.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN S DUNNING whose telephone number is 571-272-4879. The examiner can normally be reached Monday thru Friday 10:30AM to 7:00PM Eastern Time Zone. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BUMSUK WON can be reached at 571-272-2713. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RYAN S DUNNING/Primary Examiner, Art Unit 2872