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 § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 13 and 14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The claims recite the limitation " the moveable floor" in line 4. There is insufficient antecedent basis for this limitation in the claim.
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 – 6 and 15 – 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 further in view of Larsson et al. (WO 02/48998).
With respect to claims 1 and 15, 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 an 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; and one or more vents in the air cavity that equalize air pressure without substantially affecting the resonant frequency.
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).
Larsson et al. teach an air cavity (Fig.3, Item 36) comprising a chamber (Fig. 3 volume above Item 31 and under Item 30) and one or more vents (Fig.3, Items 35) in the air cavity that equalize air pressure without substantially affecting the resonant frequency of the chamber.
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 Larsson vents would equalize the pressure in the cavity in this manner facilitating the movement of the moveable partition since no pressure changes resistance is present.
With respect to claim 2, The Examiner takes official notice that it is well-known in the art to employ piezoelectric motors as actuator devices because they are small in size and their power consumption is minimal, as disclose by Busche (US 10,866,036).
With respect to claims 3 and 17, 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 4 and 18, 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 5 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 6 and 16, Jeon et al. teach wherein the unit cell is incorporated into a metasurface comprising an array pattern of unit cells (Figs.1 – 4).
Claims 7 – 10 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) and Larsson et al. (WO 02/48998), and further in view of French (US 7,353,908).
Jeon et al., Kostun et al. and Larsson 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. and Larsson 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 11 – 14 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 Larsson et al. (WO 02/48998).
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 piezoelectric actuator.
However, Busche teaches the use of a piezoelectric 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).
Larsson et al. teach an air cavity (Fig.3, Item 36) comprising a chamber (Fig. 3 volume above Item 31 and under Item 30) and one or more vents (Fig.3, Items 35) in the air cavity that equalize air pressure without substantially affecting the resonant frequency of the chamber.
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 piezoelectric actuator as the Kostun et al. actuator because they are small in size and their power consumption is minimal; and Larsson vents would equalize the pressure in the cavity in this manner facilitating the movement of the moveable partition since no pressure changes resistance is present.
With respect to claims 12 and 14, Kostun et al. teach the limitations already discussed in a previous rejection regarding claims 3 and 5.
With respect to claim 13, 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).
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, 3 – 13 and 15 – 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 4 and 8 – 20 of copending Application No. 18/808,961 in view of Busche (US 10,866,036), and further in view of Larsson et al. (WO 02/48998).
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).
Larsson et al. teach an air cavity (Fig.3, Item 36) comprising a chamber (Fig. 3 volume above Item 31 and under Item 30) and one or more vents (Fig.3, Items 35) in the air cavity that equalize air pressure without substantially affecting the resonant frequency of the chamber.
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; and Larsson vents would equalize the pressure in the cavity in this manner facilitating the movement of the moveable partition since no pressure changes resistance is present.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shawki S. Ismail can be reached on 571-272-3985. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Edgardo San Martin/
Edgardo San Martín
Primary Examiner
Art Unit 2837
August 8, 2026
Prosecution Insights