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 .
Response to Arguments
Applicant’s arguments of May 17, 2026 have been fully considered, but are not persuasive with respect to the previously-cited Kim reference.
The newly-amended Claim 1 is substantially identical in scope to the previously-presented Claim 5, which was rejected based upon the cited reference Kim (U.S. Pat. Appl. Pub. No. 2023/0060203 A1). Applicant argues that Kim fails to disclose or suggest the claimed “metal reflective plate” because the corresponding structure of Kim [CNE1] is an electrode (see pages 9-11 of the Remarks of May 17, 2026). Applicant has not explained how or why the electrode of Kim fails to correspond to a metal reflective plate. However, the Office speculates that Applicant may be asserting that there is a lack of explicit disclosure of a metal for electrode CNE1 of Kim.
It has been held that a generic disclosure will anticipate a claimed species covered by that disclosure when the species can be “at once envisaged” [instantly envisaged] from the disclosure. See MPEP § 2131.02, Section III, citing Kennametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 1381; 114 USPQ2d 1250, 1254 (Fed. Cir. 2015).
In the present case, although Kim discloses that several examples of materials for contact electrodes [CNE1, CNE2] may include transparent conductive oxides (e.g., ITO, IZO, etc.), Kim also states that the material may include various opaque conductive materials (see paragraph [0120] of Kim). Metal is a material which would be instantly envisaged by one of ordinary skill in the art as the most prominent example of an “opaque conductive material” (see, e.g., silver, copper, gold, and aluminum).
Therefore, Kim does disclose the claimed “metal reflective plate” by virtue of its disclosures regarding the contact electrode CNE1 (see paragraph [0120] of Kim).
Applicant further argues that Kim fails to disclose or suggest the claimed “nano-antenna pattern” because the structure of Kim corresponds to an electrical display backplane (see pages 10-11 of the Remarks of May 17, 2026).
However, it has been held that although a rejection requires the prior art elements to be arranged as required by the claim, this is not an ipsissimis verbis test, i.e., identity of terminology is not required. MPEP § 2131, citing In re Bond, 910 F.2d 831, 15 USPQ2d 1566 (Fed. Cir. 1990).
In the present case, it is acknowledged that Kim does not use the word “antenna”. However, the disclosures of Kim otherwise satisfy all of the physical structural requirements and chemical composition requirements of the present Claim 1 (see rejection of Claim 1 below, and see especially paragraphs [0095], [0102]-[0104], [0120] and FIG. 3 of Kim). In the Non-Final Office Action of February 25, 2026, the Office identified Kim’s indium tin oxide [ITO] as corresponding to the claimed “nano-antenna pattern” (see page 9, rejection of Claim 5). In Applicant’s response of May 17, 2026, Applicant has not provided any explanation as to how or why a transparent conductive oxide, such as Kim’s indium tin oxide [ITO], would be incapable of functioning as an antenna. Applicant has also not amended Claim 1 to include any further requirements of the claimed “nano-antenna pattern” which might serve to distinguish from the Kim reference.
Therefore, a prima facie case that Kim discloses the claimed “nano-antenna pattern” has been established, and not adequately rebutted by Applicant, and thus the rejections based upon Kim are maintained.
Applicant’s arguments with respect to the Hong, Kothari, Josberger, and Han references are moot in view of the withdrawal of rejections based upon these references.
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, 4, 6 and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kim et al., US 2023/0060203 A1, previously-cited.
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; paragraphs [0095], [0120] and FIG. 3 of Kim);
an insulating layer disposed 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 disposed 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 disposed 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);
wherein the first modulation line block and the second modulation line block each include: a transparent conducting layer, an opaque metal layer disposed on the transparent conducting layer; and a nano-antenna pattern on the opaque metal 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 4, Kim discloses the limitations of Claim 1 and further discloses: wherein the transparent conducting layer includes indium tin oxide (ITO) (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 1 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 3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Park et al., US 2019/0369457 A1, newly-cited in the present Office Action.
Regarding Claim 1, Park 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 (reflector 100 or reflector members 110; see paragraph [0060] and FIGS. 1A, 5A, 12, 21, 22, 23F of Park, but see especially FIG. 12 of Park);
an insulating layer disposed on the metal reflective plate (first insulating layer 150; paragraph [0065] and FIG. 12 of Park);
a first modulation line block disposed on one side of the insulating layer (left side of FIG. 12 of Park having the sequential layers of active layer 200, wiring structure 225, and nano-antenna N10; FIG. 12 of Park); and
a second modulation line block disposed on another side of the insulating layer facing the first modulation line block (right side of FIG. 12 of Park having the sequential layers of active layer 200, wiring structure 225, and nano-antenna N10; FIG. 12 of Park);
wherein the first modulation line block and the second modulation line block each include: a transparent conducting layer, an opaque metal layer disposed on the transparent conducting layer; and a nano-antenna pattern on the opaque metal layer (active layer 200 may include a transparent conductive oxide [TCO], the wiring structure 220 may be formed from metals such as Au [gold], Ag [silver], Cu [copper], and nano-antenna N10 may be formed from a conductive material; paragraphs [0062], [0064], [0067] and FIG. 12 of Park; the Examiner notes that the present claims do not require the claimed layers to be in direct alignment with each other).
Regarding Claim 3, Park discloses the limitations of Claim 1 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 (the optical modulation device of Park may be configured to independently apply a first voltage to each of the plurality of reflector members and independently apply a second voltage to each of the plurality of nano-antennas; Abstract and paragraphs [0018], [0020], [0066], [0082], [0090], [0100] and FIG. 12 of Park).
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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.
Claims 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Park.
Regarding Claims 7-9, Park discloses the limitations of Claim 1, but does not appear to explicitly disclose numerical values of the dimensions of width, pitch, and spacing, such that: wherein the first modulation line block and the second modulation line block are alternately arranged with a pitch of at least 700 nm, wherein the first modulation line block and the second modulation line block each have a line width of 44.4 nm to 350 nm, or wherein the first modulation line block and the second modulation line block have a separation distance of 50 nm to 350 nm.
However, it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. MPEP § 2144.05, Section II, Subsection A, citing In re Aller, 220 F.2d 454, 456; 105 USPQ 233, 235 (CCPA 1955).
In the present case, the general conditions of the claims are disclosed in the prior art because Park discloses a nanometer-scale device having individual nano-antenna structures of sub-wavelength size, wherein the operating wavelength of the device may include visible light [400 nm to 700 nm] or non-visible light [i.e., wavelengths less than 400 nm or greater than 700 nm], and dimensions of the device, including horizontal length and gap size, will vary based upon the desired optical characteristics and wavelength of use (see, e.g., Abstract and paragraphs [0061], [0062], [0112] of Park).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select the claimed nanometer-scale dimensions for the width, pitch, and spacing [gap] of Park, in accordance with mere discovery of workable ranges or optimization of particular optical characteristics and/or wavelength of use.
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
Applicant’s amendments necessitated the new grounds of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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 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.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RYAN S DUNNING/Primary Examiner, Art Unit 2872
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