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
Applicant’s election of species B (claims 1 and 12-19) in the reply filed on 4/13/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
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.
(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.
Claim(s) 1 and 12-13 is/are rejected under 35 U.S.C. 102(a1, a2) as being anticipated by Kats WO 2013184556 A1.
Re claim 1, Kats teaches a unit cell, wherein the unit cell comprises: an electrode layer, an electrical actuating layer and a nanostructure (see paragraph 0103 and 0140); wherein, the nanostructure is a sub-wavelength structure (see paragraph 0103); the electrode layers are setting on the both sides of the electrical actuating layer (see paragraph 0140); the nanostructure is setting on the one side of the electrode layer away from the electrical actuating layer (see paragraph 0103); the electrical actuating layer is capable of moving in the height axial direction of the nanostructure under the action of the electric field provided by the electrode layer (see paragraph 0103).
Re claim 12, Kats teaches wherein the phase-tunable metasurface comprises the unit cell according to claim 1 (see paragraph 0103).
Re claim 13, Kats teaches wherein the unit cells are arranged in array (see paragraph 0136).
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(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kats WO 2013184556 A1 and further in view of XIAOHANG (WO 2020225633 A1).
Re claim 14, Kats does not disclose the phase-tunable metasurface further comprises: a filler material, the filler material is configured to fill a gap between any two nanostructures in the metalens; wherein, the filler material comprises fluid with an extinction coefficient less than or equal to 0.1 for the incident light.
However XIAOHANG discloses in the art the phase-tunable metasurface further comprises: a filler material, the filler material is configured to fill a gap between any two nanostructures in the metalens (see paragraph 0026); wherein, the filler material comprises fluid with an extinction coefficient less than or equal to 0.1 for the incident light (see paragraph 0026).
Therefore it would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the device of Kats to include the phase-tunable metasurface further comprises: a filler material, the filler material is configured to fill a gap between any two nanostructures in the metalens; wherein, the filler material comprises fluid with an extinction coefficient less than or equal to 0.1 for the incident light as taught by XIAOHANG for the predictable result of achieving a specific modification of light.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kats WO 2013184556 A1, XIAOHANG (WO 2020225633 A1) and further in view of Tamma et alUS 20220146079 A1.
Re claim 15, Tamma does not explicitly disclose the filler material is air.
However Tamma et al teaches filler material is air.
Therefore it would have been obvious to one having ordinary skill in the art at the time the application was filed to modify the device of Kats and XIAOHANG to include filler material is air as disclosed by Tamma et al for the predictable result of adaptive light systems.
Allowable Subject Matter
Claims 16-19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: The prior art taken singularly or in combination fails to anticipate or fairly suggest the limitations of the independent claims, in such a manner that a rejection under 35 U.S.C. 102 or 103 would be proper.
In regard to dependent claim 16, the prior art taken either singly or in combination fails to anticipate or fairly suggest the filler material is non-air fluid; the absolute value of the difference between the refractive index of the non-air fluid and the nanostructure is greater than or equal to 0.5.; recited together in combination with the totality of particular features/limitations recited therein
In regard to independent claim 17, the prior art taken either singly or in combination fails to anticipate or fairly suggest the height of the electrical actuating layer is greater than or equal to 10 times of the central wavelength of the incident light; recited together in combination with the totality of particular features/limitations recited therein
In regard to independent claim 18, the prior art taken either singly or in combination fails to anticipate or fairly suggest wherein, the movement of the electrical actuating layer in the height axial direction satisfies at least: wherein, the nF (ₗc) is the refractive index of the filler material of the incident light at the central wavelength; d is the maximum displacement of movement for the electrical actuating layer, Ac is the central wavelength of the incident light; recited together in combination with the totality of particular features/limitations recited therein
In regard to independent claim 19, the prior art taken either singly or in combination fails to anticipate or fairly suggest the maximum displacement of movement for the electrical actuating layer is less than or equal to 500nm; recited together in combination with the totality of particular features/limitations recited therein
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES R GREECE whose telephone number is (571)272-3711. The examiner can normally be reached 8-4.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Allana Bidder can be reached at 571-272-5560. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES R GREECE/Supervisory Patent Examiner, Art Unit 2875
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