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 .
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.
Claims 1 – 4, 8 and 16 – 19 are rejected under 35 U.S.C. 103 as being unpatentable over Jeon et al. (KR 20220023621) in view of Kostun et al. (US 6,792,907) and Busche (US 10,866,036), and further in view of Wakino et al. (US 4,692,727).
With respect to claims 1 and 16, Jeon et al. teach a system, comprising a unit cell of a metasurface configured for sound absorption within a narrowband frequency range, the unit cell having dimensions that are deep subwavelength values relative to a wavelength of an incoming acoustic wave that is within the narrowband frequency range (Figs.1 and 2, Item 100; text recites “sound absorbing device 100…function as an acoustic metasurface”), the unit cell (Fig.4, Item 120) comprising an air cavity within a support, the air cavity comprising a chamber (Fig.4, Item S) and a neck port (Fig.4, Item 125); but fail to disclose a moveable partition within the air cavity that changes at least one of: a first volume of the chamber, or a second volume of the neck port, wherein the first volume and the second volume, at least in part, determine a resonant frequency of the unit cell, to resonate the unit cell at the resonant frequency to phase cancel the incoming acoustic wave, responsive to being exposed to the incoming acoustic wave; and a MEMS actuator device physically coupled to the moveable partition, and that, in response to control signaling, moves the moveable partition to determine the resonant frequency of the unit cell.
On the other hand, Kostun et al. teach a unit cell configured for sound absorption comprising an air cavity within a support, the air cavity comprising a chamber (Fig.1, Item 20) and a neck port (Fig.1, Item 24); a moveable partition (Fig.1, Item 14 or Fig.3, Item 34”) within the air cavity that changes at least one of a first volume of the chamber (Fig.1, Item 20), or a second volume of the neck port (Fig.3, Item 24”), wherein the first volume and the second volume, at least in part, determine a resonant frequency of the unit cell, to resonate the unit cell at the resonant frequency to phase cancel the incoming acoustic wave, responsive to being exposed to the incoming acoustic wave; and an actuator device (Fig.1, Item 18 or Fig.3, Item 34”) physically coupled to the moveable partition, and that, in response to control signaling, moves the moveable partition to determine the resonant frequency of the unit cell (Col.2, Line 41 – Col.3, Line 18 and Col.3, Lines 38 – 53 and Col.5, Lines 11 – 34).
Busche teaches the use of a MEMS actuator (Figs.3A and 3B, Item 128) to change the volume of a chamber (Figs.3A and 3B Item 124) (Col.36, Lines 21 – 40).
Wakino teaches a MEMS actuator being a cantilever (Fig.2, Item 4) anchored (Fig.2, Item 5) at one end to a supporting structure (Fig.2, Item 1). The method of forming a device is not germane to the issue of patentability of the device itself. Furthermore, The Examiner takes official notice that it is well-known in the art of piezoelectric devices to provide a cantilever comprising a top metal layer formed over a sacrificial layer that is selectively removed to create an air gap beneath the top metal layer.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to employ the Kostun et al. unit cell configuration with the Jeon et al. design because it would permit the variable tuning in real-time of the unit cell to a current resonant frequency of the acting incoming acoustic wave, optimizing the versatility and acoustic performance of the unit cell; and Busche MEMS actuator will provide an actuator that is small in size and its power consumption is minimal. Wakino suggest that a cantilever configuration would provide the same performance results as the Busche configuration.
With respect to claims 2 and 18, Kostun et al. teach wherein the moveable partition (Fig.1, Item 14) is positioned as a chamber floor to change the first volume of the chamber by changing a height dimension of the chamber (Fig.1).
With respect to claims 3 and 19, The Examiner takes official notice that it is well-known in the art to provide the moveable partition being positioned as a chamber wall to change the first volume of the chamber by changing a width dimension of the chamber because it would give another way of changing the volume of the chamber as necessitated by the specific requirements of the particular application, as disclosed by Kino et al. (US 7,089,901).
With respect to claims 4 and 19, Kostun et al. teach wherein the moveable partition is positioned as a neck port wall (Fig.3, Item 24”) to change the second volume of the neck port by changing a width dimension of the neck port (Col.5, Lines 11 – 34).
With respect to claims 8 and 17, Jeon et al. teach wherein the unit cell is incorporated into a metasurface comprising an array pattern of unit cells (Figs.1 – 4).
Claims 5 – 7 are rejected under 35 U.S.C. 103 as being unpatentable over Jeon et al. (KR 20220023621) in view of Kostun et al. (US 6,792,907), Busche (US 10,866,036) and Wakino et al. (US 4,692,727), and further in view of Chen et al. (US 10,408,230).
Jeon et al., Kostun et al., Busche and Wakino et al. teach the limitations already discussed in a previous rejection, but fail to disclose further comprising a controller that applies the control signaling, the control signaling comprising energy that heats the MEMS-based device, to move the moveable partition by a controlled displacement distance; and wherein the MEMS-based device comprises a bimorph MEMS cantilever comprising an anchored portion and a non-anchored portion, wherein the non-anchored portion is at an upward angle relative to the non-anchored portion in a non-actuated state as a result of residual stress or wherein the anchored portion is substantially parallel to the non-anchored portion in a non-actuated state, and wherein, in an actuated state, an amount of bimorph MEMS cantilever displacement at an end of the non-anchored portion corresponds to the energy to move the non-anchored portion to a less-upward angle or to an upward angle relative to the anchored portion to move the moveable partition by the controlled displacement distance.
Nevertheless, Chen et al. teach a Helmholtz resonator (Fig.1, Item 110) comprising a controller (Fig.1, Item 120) that applies the control signaling, the control signaling (Fig.2A, Item Sc) comprising energy that heats a thermoelectric material device (Fig.2A, Item 130), to move a moveable partition (Fig.2A, Item 116) by a controlled displacement distance (Fig.2B); and wherein the thermoelectric material device comprises a bimorph thermoelectric material cantilever (Fig.3, Item 130_1) comprising an anchored portion and a non-anchored portion, wherein the non-anchored portion, depending on the perspective and application, is at an upward angle relative to the non-anchored portion in a non-actuated state as a result of residual stress or wherein the anchored portion is substantially parallel to the non-anchored portion in a non-actuated state, and wherein, in an actuated state, an amount of bimorph thermoelectric material cantilever displacement at an end of the non-anchored portion corresponds to the energy to move the non-anchored portion to a less-upward angle or to an upward angle relative to the anchored portion to move the moveable partition by the controlled displacement distance (Col.4, Lines 11 – 64).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to employ the Chen et al. configuration with the Jeon et al., Kostun et al., Busche and Wakino et al. design because the temperature-based control signal is proportional to the operational performance of the fan, wherein the noise generated will change depending on such operational performance, in this manner, an actuator control signal could be generated directly based on the fan performance and its associated noise. Furthermore, Busche established the equivalence of using a MEMS, thermal reactive material and bimetallic elements actuators (Col.36, Lines 27 – 36).
Claims 9 – 12 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Jeon et al. (KR 20220023621) in view of Kostun et al. (US 6,792,907), Busche (US 10,866,036) and Wakino et al. (US 4,692,727), and further in view of French (US 7,353,908).
Jeon et al., Kostun et al., Busche and Wakino et al. teach the limitations already discussed in a previous rejection, but fail to disclose wherein the metasurface is positioned proximate to or wrapped around at least part of a server or rack of servers, and wherein the incoming acoustic wave at the unit cell results from operation of a cooling fan of the server.
Nevertheless, French teaches an active noise attenuator (Figs.2 and 4, Item 20) positioned proximate to a server or rack of servers (Fig.2, Item 48), and wherein the incoming acoustic wave (Fig.4, Item 58) at the unit cell results from operation of a cooling fan (Fig.4, Items 80) of the server. The Examiner takes official notice that it is well-known in the art to wrapped around a noise attenuator over at least part of the noise source and/or path, i.e. housings, enclosures, shrouds, ducts, etc.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to place the Jeon et al., Kostun et al., Busche and Wakino et al. sound absorption device proximate to a server as taught by French because it would help reduce the noise generated by the fans, in this manner complying with regulations for limits on the allowable noise level at a working facility. Additionally, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d - 164 7 (1987).
Claims 13 – 15 are rejected under 35 U.S.C. 103 as being unpatentable over Kostun et al. (US 6,792,907) in view of Busche (US 10,866,036), and further in view of Wakino et al. (US 4,692,727).
With respect to claim 11, Kostun et al. teach a method, comprising obtaining, by a system comprising a controller (Fig.1, Item 28), a frequency value representative of a frequency of an acoustic wave to cancel; and controlling, by the system, an actuator (Fig.1, Item 18) to adjust a variable dimension of a Helmholtz resonator unit cell (Fig.1, Item 10), based on the frequency of the acoustic wave, to resonate the Helmholtz resonator unit cell to cancel noise comprised by the acoustic wave (Col.2, Line 41 – Col.3, Line 18 and Col.3, Lines 39 – 53); but fail to disclose wherein the actuator is a MEMS actuator.
However, Busche teaches the use of a MEMS actuator (Figs.3A and 3B, Item 128) to change the volume of a chamber (Figs.3A and 3B Item 124) (Col.36, Lines 21 – 40).
Wakino teaches a MEMS actuator being a cantilever (Fig.2, Item 4) anchored (Fig.2, Item 5) at one end to a supporting structure (Fig.2, Item 1). Furthermore, The Examiner takes official notice that it is well-known in the art of piezoelectric devices to provide a cantilever comprising a top metal layer formed over a sacrificial layer that is selectively removed to create an air gap beneath the top metal layer.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to employ the Busche MEMS actuator as the Kostun et al. actuator because they are small in size and their power consumption is minimal, Wakino suggest that a cantilever configuration would provide the same performance results as the Busche configuration.
With respect to claims 14 and 15, Kostun et al. teach the limitations already discussed in a previous rejection regarding claim 2.
Double Patenting
The nonstatutory 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 nonstatutory 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 nonstatutory 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 § 2146 et seq. 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 nonstatutory 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 actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1 – 4 and 8 – 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3 – 13 and 15 – 20 of copending Application No. 18/809,945 in view of Busche (US 10,866,036) and further in view of Wakino et al. (US 4,692,727).
Busche teaches the use of a piezoelectric actuator or a MEMS actuator (Figs.3A and 3B, Item 128, Col.36, Line 29) to change the volume of a chamber (Figs.3A and 3B Item 124) (Col.36, Lines 21 – 40).
Wakino teaches a MEMS actuator being a cantilever (Fig.2, Item 4) anchored (Fig.2, Item 5) at one end to a supporting structure (Fig.2, Item 1). Furthermore, The Examiner takes official notice that it is well-known in the art of piezoelectric devices to provide a cantilever comprising a top metal layer formed over a sacrificial layer that is selectively removed to create an air gap beneath the top metal layer.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to employ a MEMS actuator instead of a piezoelectric actuator because Busche established their equivalence. Wakino suggest that a cantilever configuration would provide the same performance results as the Busche configuration.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection relies on a reference that was not applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the 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 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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDGARDO SAN MARTIN whose telephone number is (571)272-2074. The examiner can normally be reached on 9:00 - 5:00 M - F.
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/Edgardo San Martin/
Edgardo San Martín
Primary Examiner
Art Unit 2837
August 8, 2026
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