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 .
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.
DETAILED ACTION
This is an AIA application filed May 6, 2024.
The earliest effective filing date of this AIA application is seen as May 6, 2023, the date of the earliest priority application (CHINA 202310506845.7) for any claims which are fully supported under 35 U.S.C. 112(a) by the parent application.
The effective filing date of this AIA application is seen as May 6, 2024, the actual filing date, for any claims that are not fully supported by the foregoing provisional or non-provisional application(s).
The present application is also related to the applications giving rise to the following patent publication(s):
Office
Application
App. Date
Pub. #
Pub. Date
CN
202310506845
05/06/2023
CN 118915215 A
11/08/2024
The claims filed July 9, 2026 are entered, currently outstanding, and subject to examination.
This action is in response to the filing of the same date.
The current status and history of the claims are summarized below:
Last Amendment/Response
Previously
Amended:
1 & 9
N/A
Cancelled:
none
N/A
Withdrawn:
none
N/A
Added:
none
N/A
Claims 1-20 are currently pending and outstanding.
Regarding the last reply:
Claims 1 and 9 were amended.
No claims were cancelled.
No claims were withdrawn.
No claims were added.
Claims 1-20 are currently outstanding and subject to examination.
This is a final action and is the second action on the merits.
Allowable subject matter is not indicated below.
Often, in the substance of the action below, formal matters are addressed first, claim rejections second, and any response to arguments third.
Special Definitions for Claim Language - MPEP § 2111.01(IV)
No special definitions are seen as present in the specification regarding the language used in the claims. Consequently, the words and phrases of the claims are given their plain meaning. MPEP §§ 2173.01, 2173.05(a), and 2111.01.
If special definitions are present, Applicant should bring those to the attention of the examiner and the prosecution history with its next response in a manner both specific and particular. In doing so, there will be no mistake, confusion, and/or ambiguity as to what constitutes the special definition(s).
To date, Applicant has provided no indication of special definitions.
Claim Rejections - 35 USC § 102
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 1-8 are rejected under 35 U.S.C. § 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2005/0270647 of Polack et al. (Polack).
With respect to claim 1, Polack discloses a two-dimensional grating (abstract), comprising
a plurality of sub-units (Fig. 2, ¶ 66, "each period d being formed of layers of at least two different materials 7, 8"),
wherein a refractive index of the sub-units (7, 8) is different from a refractive index of other parts of the two-dimensional grating (8, 7),
wherein the plurality of sub-units are arranged at intervals along a first direction (Fig. 2), and
the plurality of sub-units are arranged at intervals along a second direction (Fig. 2),
a set angle exists between the first direction and the second direction (Fig. 2, seen as arbitrary), and
an angular bisector direction of the set angle coincides with a diffraction order direction required to be suppressed by the two-dimensional grating (same product/same features, see below; also arbitrary as per the set angle);
projections of two adjacent sub-units in any one of the first direction and the second direction in a direction perpendicular to the diffraction order direction are connected to each other and not overlapped (same product/same features, see below; adjacency may be on the diagonal).
For product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties and/or functions are presumed to be inherent. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP § 2112.01(I).
Consequently, because Polack as set forth above provides the structure of claim 1, the combination is seen as also providing the same claimed properties or functions of claim 1.
Unsupported features are seen to directly result from the supported/claimed structures. No authority is known by which unsupported or “naked” functions/characteristics/features can be claimed and subject to exclusive protection.
Below, this analysis is referred to as “same product/same features”.
With respect to claim 2, Polack as set forth above discloses the two-dimensional grating of claim 1, including one wherein
each of the sub-units is a rectangular sub-unit (Fig. 2), and
the rectangular sub-unit comprises a long side and a short side that are perpendicular to each other (Fig. 2);
the diffraction order direction required to be suppressed by the two-dimensional grating is a (1,1)-order diffraction order direction (same product/same features), and
the long side is parallel to the (1,1)-order diffraction order direction of the two-dimensional grating (same product/same features).
With respect to claim 3, Polack as set forth above discloses the two-dimensional grating of claim 2, including one wherein
projections of long sides of two adjacent sub-units in any one of the first direction and the second direction in a direction perpendicular to a (1,1)-order diffraction order direction of the two-dimensional grating are connected to each other and not overlapped (same product/same features).
With respect to claim 4, Polack as set forth above discloses the two-dimensional grating of claim 3, including one wherein
in the first direction, the sub-units are arranged at equal intervals;
in the second direction, the sub-units are arranged at equal intervals.
Per Fig. 2.
With respect to claim 5, Polack as set forth above discloses the two-dimensional grating of claim 3, including one wherein
lengths of long sides of any two sub-units are equal, and
lengths of short sides of any two sub-units are equal.
Per Fig. 2.
With respect to claim 6, Polack as set forth above discloses the two-dimensional grating of claim 2, including one wherein
in the (1,1)-order diffraction order direction of the two-dimensional grating,
a distance between two adjacent sub-units is equal to a length of a long side of each of the sub-units.
Same product/same features.
With respect to claim 7, Polack as set forth above discloses the two-dimensional grating of claim 1, including one wherein
the first direction and the second direction are directions of two lattice vectors of a lattice of the two-dimensional grating.
Same product/same features.
With respect to claim 8, Polack as set forth above discloses the two-dimensional grating of claim 7, including one wherein
an angle between the first direction and the second direction is 0° to 180°.
Same product/same features.
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.
Claims 9-20 are rejected under 35 U.S.C. § 103 as being unpatentable over Polack as set forth above in view of U.S. Patent Application Publication No. 2021/0033867 of Luo et al. (Luo).
With respect to claim 9, Polack as set forth above discloses an optical grating, comprising
an optical waveguide sheet (Fig. 2),
wherein the optical waveguide sheet comprises a coupling-in region and a coupling-out region (Fig. 4);
the coupling-out region is provided with a two-dimensional grating (Fig. 2),
the two-dimensional grating comprising a plurality of sub-units (Fig. 2, ¶ 66, "each period d being formed of layers of at least two different materials 7, 8"),
wherein a refractive index of the sub-units (7, 8) is different from a refractive index of other parts of the two-dimensional grating (8, 7),
wherein the plurality of sub-units are arranged at intervals along a first direction (Fig. 2), and
the plurality of sub-units are arranged at intervals along a second direction (Fig. 2),
a set angle exists between the first direction and the second direction (Fig. 2, seen as arbitrary), and
an angular bisector direction of the set angle coincides with a diffraction order direction required to be suppressed by the two-dimensional grating (same product/same features, see below; also arbitrary as per the set angle);
projections of two adjacent sub-units in any one of the first direction and the second direction in a direction perpendicular to the diffraction order direction are connected to each other and not overlapped (same product/same features).
Luo discloses a display device having diffraction gratings with reduced polarization sensitivity that includes:
"These gratings, 1D or 2D, may be included in or on a substrate and/or waveguide and may be included in an eyepiece and possibly integrated into a head-mounted display as disclosed herein.” ¶ 159.
"A head-mounted display system comprising: [0165] a head-mountable frame; [0166] a light projection system configured to output light to provide image content; and [0167] a waveguide supported by the frame," ¶ 164
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to make use of a 2D grating along the lines of Luo with a system according to Polack as set forth above in order to provide display images to a viewer. This provides one rationale to combine the references.
Another completely independent and separately sufficient rationale arises as follows. In making the combination (above), the combining of prior art elements (listed above) according to known methods (per the references) to yield predictable results (a personal display device) would occur as each element merely performs the same function in combination as it does separately. MPEP § 2141(III). This additional rationale is a sufficient, a complete, and an explicitly-recognized rationale to combine the references and conclude that the claim is obvious both under the controlling KSR Supreme Court case and MPEP § 2141(III)(A). Current Office policy regarding the determination of obviousness is set forth in the Federal Register notice at 89 Fed. Reg. 14449 (Feb. 27, 2024).
Further, the combination would then provide:
an optical waveguide having a 2D grating of Polack.
With respect to claim 10, Polack in view of Luo as set forth above discloses the optical waveguide of claim 9, including one wherein
each of the sub-units is a rectangular sub-unit, and
the rectangular sub-unit comprises a long side and a short side that are perpendicular to each other;
the diffraction order direction required to be suppressed by the two-dimensional grating is a (1,1)-order diffraction order direction, and
the long side is parallel to the (1,1)-order diffraction order direction of the two-dimensional grating.
Per claim 2, above.
With respect to claim 11, Polack in view of Luo as set forth above discloses the optical waveguide of claim 10, including one wherein
projections of long sides of two adjacent sub-units in any one of the first direction and the second direction in a direction perpendicular to a (1,1)-order diffraction order direction of the two-dimensional grating are connected to each other and not overlapped.
Per claim 3, above.
With respect to claim 12, Polack in view of Luo as set forth above discloses the optical waveguide of claim 11, wherein in the first direction,
the sub-units are arranged at equal intervals;
in the second direction,
the sub-units are arranged at equal intervals.
See claim 4, above.
With respect to claim 13, Polack in view of Luo as set forth above discloses the optical waveguide of claim 11, including one wherein
lengths of long sides of any two sub-units are equal, and
lengths of short sides of any two sub-units are equal.
See claim 5, above.
With respect to claim 14, Polack in view of Luo as set forth above discloses the optical waveguide of claim 10, including one wherein
in the (1,1)-order diffraction order direction of the two-dimensional grating,
a distance between two adjacent sub-units is equal to a length of a long side of each of the sub-units.
See claim 6, above.
With respect to claim 15, Polack in view of Luo as set forth above discloses the optical waveguide of claim 9, including one wherein
the first direction and the second direction are directions of two lattice vectors of a lattice of the two-dimensional grating.
See claim 7, above.
With respect to claim 16, Polack in view of Luo as set forth above discloses the optical waveguide of claim 14, including one wherein
the (1,1)-order diffraction order direction of a two-dimensional grating is inclined to a horizontal direction.
Same product/same features.
With respect to claim 17, Polack in view of Luo as set forth above discloses the optical waveguide of claim 14, including one wherein
the (1,1)-order diffraction order direction of a two-dimensional grating is perpendicular to a horizontal direction.
Same product/same features.
With respect to claim 18, Polack in view of Luo as set forth above discloses the optical waveguide of claim 15, including one wherein
an angle between the first direction and the second direction is 0° to 180°.
Same product/same features.
With respect to claim 19, Polack in view of Luo as set forth above discloses the optical waveguide of claim 16, including one wherein
an angle between the first direction and the second direction is equal to 90°.
Same product/same features.
With respect to claim 20, Polack in view of Luo as set forth above discloses an AR eyewear, comprising:
a spectacle frame;
at least one optical waveguide of claim 9, wherein the optical waveguide sheet of the optical waveguide is embedded in the spectacle frame.
Per claim 9, above.
Response to Arguments
Applicant's arguments filed July 9, 2026 have been fully considered but they are not persuasive and the claim rejections are not rebutted.
Applicant argues that:
Polack merely discloses a two-dimensional diffraction grating formed by a "doubly periodical repetition of a same unit cell.” Polack, paras. [0022] and [0067]. The grating is constructed from alternating first and second stacks of materials 7 and 8, forming "contiguous lines 11" of width p/2 that repeat along a direction parallel to the substrate surface with period p. id. at [0066]. In the direction perpendicular to the substrate surface (i.e., the depth direction), the stacks are offset by d/2, creating a second periodicity with period d. id. at [0066], [0084], and [0102]-[0104]. Thus, Polack's two periodic directions are: (i) a lateral direction parallel to the substrate surface, and (ii) a depth direction perpendicular to the substrate surface. Polack's structure is a volume-type stacked grating, not a planar array of discrete sub-units arranged on a surface.
Examiner response: At least the edge face show towards the view in Fig. 2 is planar and will operate as such optically. Further, claim 12 has the device as a "two-dimensional diffraction gratting [sic, grating] according to claim 1".
Amended claim 1 recites "a plurality of sub-units, wherein a refractive index of the sub-units is different from a refractive index of other parts of the two-dimensional grating.” (Emphasis added). This feature defines the sub-units as discrete elements within the two-dimensional grating that possess a refractive index distinct from the surrounding material of the grating. That is, the sub-units are identifiable, bounded regions embedded in the grating plane, distinguished by a refractive index contrast relative to "other parts" of the grating (i.e., the remaining grating material after all sub-units are notionally removed).
Examiner response: Per claim 14 of Polack, the individual subunits have different indexes of refraction and per claim 12, the claimed device is two-dimensional.
Under MPEP § 2112, inherency requires that the claimed feature must "necessarily" be present in the prior art structure; it is not sufficient that the feature "may" or "could" be present. See In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) ("Inherency ... may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient."). Polack's two periodic directions are (i) a lateral direction (period p, parallel to the substrate surface) and (ii) a depth direction (period d, perpendicular to the substrate surface). These two directions are mutually perpendicular and relate to a volume-type stacked grating. The angular bisector of these two perpendicular directions would point at 450 to the substrate surface-a direction extending into the depth of the grating rather than along the grating plane. This geometric configuration is fundamentally different from the claimed arrangement, where the first and second directions are both in the grating plane, and the angular bisector of the set angle between them coincides with a specific in-plane diffraction order direction (e.g., the (1,1)-order diffraction order direction, as further specified in dependent claim 2).
Examiner response: Examiner sees no disclosure in the specification as originally filed giving rise to the claim feature of "an angular bisector direction of the set angle coincides with a diffraction order direction required to be suppressed by the two-dimensional grating.” Instead, it is merely declared as being true without indication of how it is achieved. In the same way, Polack provides the same structure and so provides the same features.
Just as the claimed element is inherent in the application, it is likewise inherent in the prior art.
Polack's structure consists of continuous, volume-filling alternating material layers; there are no discrete planar sub-units whose projections in a perpendicular direction can be analyzed for "connected and not overlapped" relationships. Polack's grating elements are not separated sub-units arranged in a two-dimensional plane; they are laterally contiguous and vertically stacked material volumes. The projection analysis recited in claim 1 presupposes discrete, spaced-apart sub-units in a planar arrangement, which is a structural paradigm that does not exist in Polack.
Examiner response: No “separation” is set forth in the claims. Applicant may be reading the specification into the claims.
As discussed above, the structures are not identical or substantially identical. The claimed two-dimensional grating comprises discrete sub-units with a refractive index different from the surrounding grating material, arranged in a planar configuration along two in-plane directions (the first direction and the second direction). Polack's grating comprises alternating material stacks forming contiguous lines that repeat along one lateral direction and one depth direction, without discrete planar sub-units having a refractive index contrast relative to surrounding grating material. These are structurally different configurations, and the presumption of inherency under MPEP § 2112.01(I) does not apply.
Examiner response: Applicant may be reading the specification into the claims.
The claims as written control the analysis and the sub-units in Polack are seen as reading upon the claims. As both sub-units 7 and 8 have different indexes of refraction, each serves as the surrounding grating material for the other.
Even assuming, arguendo, that it would have been obvious to combine Polack's two-dimensional grating with Luo's waveguide structure, the resulting combination still would not yield the claimed invention. The Office's stated motivation is to "make use of a 2D grating along the lines of Luo with a system according to Polack ... in order to provide display images to a viewer.” Office Action, p. 9. However, this combination merely places Polack's volume-type stacked grating into a waveguide context. It does not provide any teaching, suggestion, or motivation to modify Polack's grating structure to include discrete sub-units having a different refractive index from the surrounding grating material, arranged in a planar configuration where the angular bisector of the set angle between two in-plane directions coincides with a diffraction order direction to be suppressed, and where adjacent sub-unit projections perpendicular to the diffraction order direction are connected and non-overlapping.
Examiner response: Per above, the elements, units, and sub-units are all present in Polack. Luo does not cure Polack as Polack requires no cure.
The Office also relies on MPEP § 2141(III) ("combining of prior art elements according to known methods to yield predictable results") as an additional rationale (Office Action, p. 9). However, under KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), the obviousness analysis requires more than a showing that the individual elements existed in the prior art; it must also be shown that the combination would have been predictable to a person of ordinary skill. Here, neither Polack nor Luo teaches or suggests the specific planar sub-unit arrangement with refractive index contrast and the geometric projection constraints of the claimed two-dimensional grating. The predictability of arriving at the claimed grating structure from the combination of Polack's volume-type stacked grating and Luo's waveguide has not been established.
Examiner response: Per above, the combination reads upon the claims. As such, the rejection is not rebutted.
Applicant's arguments with regards to the remaining claims all rely upon the arguments set forth above. Consequently, these remaining arguments as seen as being addressed by the examiner's corresponding remarks.
Applicant’s remaining arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. As such, the examiner makes no remarks regarding them.
Conclusion
Applicant’s publication US 20240369773 A1 published November 7, 2024 was previously cited.
No new art is cited.
Applicant's amendment necessitated any new ground(s) 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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW JORDAN whose telephone number is (571) 270-1571. The examiner can normally be reached most days 1000-1800 PACIFIC TIME ZONE (messages are returned).
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. While examiner does not examine over the phone (see 37 C.F.R. § 1.2), examiner is glad to clarify or discuss issues so long as it forwards prosecution.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Thomas (Tom) HOLLWEG can be reached at (571) 270-1739. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Andrew Jordan/
Primary Examiner, Art Unit 2874
V: (571) 270-1571 (Pacific time)
F: (571) 270-2571
September 9, 2026
Prosecution Insights