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 .
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 1-11 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 and 11-12 of copending Application No. 19068175 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application are anticipated by or obvious in view of the claims of the copending application as follows.
Regarding claim 1, Claim 1 of the copending application recites a metasurface reflector comprising: a first metal layer and a second metal layer stacked in a first direction; a dielectric layer provided between the first metal layer and the second metal layer in the first direction (lines 1-5 of claim 1); and a protective layer covering a surface of the second metal layer opposite to the dielectric layer ( “a protective layer covering the second metal layer, wherein the dielectric layer includes a main surface on which the second metal layer is provided” lines 6-8 of claim 1, “the second metal layer includes metal units”, lines 13-14 of claim 1, “the protective layer includes a first portion covering the top surface”, lines 22-23 of claim 1), wherein the dielectric layer includes a main surface on which the second metal layer is provided, wherein the metasurface reflector is divided into a plurality of unit regions arranged in a second direction along the main surface and in a third direction along the main surface and intersecting the second direction, wherein the second metal layer includes metal units respectively provided in all or some of the plurality of unit regions, and wherein the protective layer is made of a metal having a standard electrode potential higher than that of a metal constituting the second metal layer (lines 6-17 of claim 1).
Regarding claim 2, Claim 2 of the copending application recites The metasurface reflector according to claim 1, wherein a length of the protective layer in the first direction (“wherein a thickness of the protective layer”, line 2 of claim 2) is 20% or less of a sum of a length of the second metal layer in the first direction (lines 2-3 of claim 2) and the length of the protective layer in the first direction (“and the thickness of the protective layer”, lines 3-4 of claim 2).
Regarding claim 3, Claim 3 of the copending application recites the metasurface reflector according to claim 1, wherein each of the metal units is a metal body having a trapezoidal shape when viewed from the first direction (lines 1-3 of claim 3).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding claim 4, Claim 4 of the copending application recites the metasurface reflector according to claim 3, wherein a length of the metal body in the second direction is 500 nm or more and 2500 nm or less, wherein a length of the metal body in the first direction is 10 nm or more and 100 nm or less, wherein a length of a short side of the metal body is 10 nm or more and 200 nm or less, and wherein a length of a long side of the metal body is larger than the length of the short side and is 100 nm or more and 500 nm or less (lines 1-9 of claim 4).
Regarding claim 5, Claim 5 of the copending application recites the metasurface reflector according to claim 1, wherein the protective layer is made of a metal containing at least one element selected from a group consisting of gold, ruthenium, and iridium (lines 1-4 of claim 5).
Regarding claim 6, Claim 6 of the copending application recites the metasurface reflector according to claim 1, wherein the second metal layer is made of a metal containing at least one element selected from a group consisting of silver, aluminum, and copper (lines 1-4 of claim 6).
Regarding claim 7, Claim 7 of the copending application recites the metasurface reflector according to claim 1, wherein the dielectric layer is made of a material transparent in a visible light region (lines 1-3 of claim 7)
Regarding claim 8, Claim 8 of the copending application recites the metasurface reflector according to claim 7, wherein the dielectric layer is made of a compound selected from a group consisting of silicon oxide, titanium oxide, magnesium oxide, and aluminum oxide (lines 1-4 of claim 8).
Regarding claim 9, Claim 9 of the copending application recites the metasurface reflector according to claim 1, wherein a length of the dielectric layer in the first direction is 10 nm or more and 100 nm or less, and wherein a length of the first metal layer in the first direction is 50 nm or more and 1000 nm or less (lines 1-5 of claim 9).
Regarding claim 11, Claim 11 of the copending application recites a projection device mounted on a near-eye wearable device, the projection device comprising: a light source configured to emit laser light; a movable mirror configured to perform scanning with the laser light; and the metasurface reflector according to claim 1, the metasurface reflector configured to reflect the laser light that has passed through the movable mirror to cause a user wearing the near-eye wearable device to visually recognize an image (lines 1-9 of claim 11).
Regarding claim 12, Claim 12 of the copending application recites a near-eye wearable device comprising: the projection device according to claim 10; and a lens provided with the metasurface reflector (lines 1-3 of claim 12).
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, 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.
Claim(s) 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (KR20180099326A, with reference made to provided machine translation, Lee) in view of Yokoyama et al. (US Pub. 20130230931, Yokoyama).
As per claim 1, Lee teaches (in figure 1) a metasurface reflector comprising: a first metal layer (metal substrate layer 14, formed of aluminum, see paragraph 60) and a second metal layer (nanoantenna strips 11) stacked in a first direction (z direction); a dielectric layer (insulator layer 12) provided between the first metal layer and the second metal layer in the first direction; wherein the dielectric layer includes a main surface (upper surface of insulator layer 12) on which the second metal layer is provided, wherein the metasurface reflector is divided into a plurality of unit regions (metasurface unit cells 10) arranged in a second direction (x direction) along the main surface and in a third direction (y direction) along the main surface and intersecting the second direction, wherein the second metal layer includes metal units (each of the nanoantenna strips 11) respectively provided in all or some of the plurality of unit regions, and wherein a metal constituting the second metal layer is formed of aluminum (paragraph 60).
Lee does not teach a protective layer covering a surface of the second metal layer opposite to the dielectric layer wherein the protective layer is made of a metal having a standard electrode potential higher than that of a metal constituting the second metal layer.
However, Yokoyama teaches (in figure 1) covering an upper most aluminum layer (metal film 101) of a nanostructure plasmonic reflector (photonic crystal 100 with reflection surface 112) with a protective layer (oxide thin film made of Au, see paragraph 136) wherein the protective layer is made of a metal (Au) having a standard electrode potential higher than that of a metal (Al) constituting the upper most aluminum layer in order to prevent oxidation of the aluminum layer (paragraph 136).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Lee to include a protective film as suggested by Yokoyama covering the upper surface of the second metal layer.
The motivation would have been to prevent oxidation of the second metal layer.
As per claim 2, Lee in view of Yokoyama teaches a length of the protective layer (Au oxide thin film from Yokoyama) in the first direction (5nm thickness in the z direction, see paragraph 136 in Yokoyama) is 20% or less of a sum of a length of the second metal layer (nanoantenna strips 11 in Lee) in the first direction and the length of the protective layer in the first direction (20% as the nanoantenna strip has a thickness of 20 nm in the z direction and the Au oxide thin film has a thickness of 5nm in the z direction, see paragraph 69 in Lee and paragraph 136 in Yokoyama).
As per claim 3, Lee teaches (in figure 1) that each of the metal units (each of the nanoantenna strips 11) is a metal body (each of the nanoantenna strips 11) having a trapezoidal shape when viewed from the first direction (see figure 1 and paragraph 60).
As per claim 4, Lee teaches (in figure 1) that a length of the metal body (each of the nanoantenna strips 11) in the second direction (x direction) is 500 nm or more and 2500 nm (Lx equal to 500 nm, see paragraph 74) or less, wherein a length of the metal body in the first direction (z direction) is 10 nm or more and 100 nm or less (H1 equal to 20 nm, see paragraph 69), wherein a length of a short side of the metal body is 10 nm or more and 200 nm or less (W1 equal to 50nm, see paragraph 74), and wherein a length of a long side of the metal body is larger than the length of the short side and is 100 nm or more and 500 nm or less (W2 equal to 150nm, see paragraph 74).
As per claim 5, Lee in view of Yokoyama teaches that protective layer Au oxide thin film from Yokoyama) is made of a metal containing at least one element selected from a group consisting of gold, ruthenium, and iridium (formed of gold, see paragraph 136 in Yokoyama).
As per claim 6, Lee teaches (in figure 1) that the second metal layer (nanoantenna strips 11) is made of a metal containing at least one element selected from a group consisting of silver, aluminum, and copper (aluminum, see paragraph 60).
As per claim 7, Lee teaches (in figure 1) that the dielectric layer (insulator layer 12) is made of a material transparent in a visible light region (formed of Silica, see paragraph 60 and the reflector operates over the entire visible light band, see paragraph 87).
As per claim 8, Lee teaches (in figure 1) that the dielectric layer (insulator layer 12) is made of a compound selected from a group consisting of silicon oxide, titanium oxide, magnesium oxide, and aluminum oxide (SiO2, see paragraph 60).
As per claim 9, Lee teaches (in figure 1) that a length of the dielectric layer (insulator layer 12) in the first direction is 10 nm or more and 100 nm or less (H2 equal to 50 nm, see paragraph 71), and wherein a length of the first metal layer (substrate layer 14) in the first direction is 50 nm or more and 1000 nm or less (H3 equal to 130 nm, see paragraph 71).
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, 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.
Claim(s) 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (KR20180099326A, with reference made to provided machine translation, Lee) and Yokoyama et al. (US Pub. 20130230931, Yokoyama), as applied to claim 1 above and in further view of Fermigier et al. (US Pub. 20220050294, Fermigier) and Heshmati et al (US Pub. 20230068608, Heshmati).
As per claim 10, Lee in view of Yokoyama teaches the metasurface reflector according to claim 1 (see rejection above).
Lee in view of Yokoyama does not teach a projection device mounted on a near-eye wearable device, the projection device comprising: a light source configured to emit laser light; a movable mirror configured to perform scanning with the laser light; and the metasurface reflector according to claim 1, the metasurface reflector configured to reflect the laser light that has passed through the movable mirror to cause a user wearing the near-eye wearable device to visually recognize an image.
However, Fermigier teaches (in figures 1, 19, and 20) providing a projection device (image source IS) mounted on a near-eye wearable device (head-mounted display device shown in figure 19), with a metasurface reflector (metasurface MS) configured to reflect the display light to cause a user wearing the near-eye wearable device to visually recognize an image (paragraph 282).
Heshmati teaches (in figure 1A) providing a light source (light source 110) configured to emit laser light (paragraph 50); a movable mirror (scanning mirror 120) configured to perform scanning with the laser light (paragraph 42).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a near eye wearable device including the laser light source and movable mirror of Heshmati and the lens and frame of Fermigier with the metasurface reflector of Lee in view of Yokoyama.
The motivation would have been to provide an image to a user which can move with the gaze of the user.
As per claim 11, Lee in view of Yokoyama, Fermigier and Heshmati a lens (lens L from Fermigier) provided with the metasurface reflector (metasurface reflector of Lee in view of Yokoyama corresponding to metasurface M in Fermigier).
Conclusion
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/ALEXANDER P GROSS/ Primary Examiner, Art Unit 2871
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