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 .
Restriction/Election
The Examiner has not required a restriction/election requirement due to the small number of currently presented claims. Examiner reserves the right to issue a future restriction/election requirement if Applicant adds/amends claims at a later date that are distinct and/or mutually exclusive from this original presentation or from each other. Additionally, Examiner reserves the right under election by original presentation to withdraw claims amended/added to embodiments not originally examined—see MPEP § 821.03.
Specification
The specification is objected to under 35 U.S.C. 112(a) as failing to provide an adequate written description of the invention and further for failing to provide an enabling disclosure.
The invention that one skilled in the art must be enabled to make and use is that defined by the claims of the particular application (in this case, claim 27). A patent claim is invalid if it is not supported by an enabling disclosure.
There is no reputable evidence of record to support the claim that the present invention involves nuclear fusion (“a system for nuclear fusion,” claim 27); nor does the Specification provide acceptable evidence that the invention is capable of operating as indicated or capable of producing excess heat (“converting heat into useful energy in an efficient manner using nuclear fusion reactions,” ¶ 3).
Applicant asserts many utilities for the invention, namely producing large amounts of commercially viable electricity, powering batteries, and driving a steam turbine, all somehow without any nuclear byproducts or pollution:
“Heat provided by the nuclear fusion reactions described herein may be extracted for a useful purpose using a variety of thermodynamic processes. For instance, the heat may be extracted using a variety of thermodynamic cycles, such as a Stirling cycle, Brayton cycle, or Rankine cycle. The heat may be used to generate linear or rotational energy using a piston, turbine, steam engine, or any other energy-conversion device. The heat may be used for refrigeration by applying an absorptive refrigeration cycle,” Specification, ¶ 87
“[A] battery can be connected to a load that uses bursts of electricity from the battery, and a fusion catalyst can supply a low amount of current to the battery to keep it charged,” Specification, ¶ 88
“[Produce energy that does not] suffer from low energy densities, utilize non-abundant supplies of fuel, or produce detrimental effects for society, such as by emitting carbon dioxide, radioactive byproducts, or other pollutants or by posing a weapons proliferation risk,” Specification, ¶ 2
“[A] fusion catalyst core configured to generate steam to drive a steam turbine,” Specification, ¶ 82
“The semiconductor layer 910 may convert the kinetic energy of the nuclear fusion products directly into electricity… a charged helium nucleus generated in a fusion reaction with a kinetic energy of 1 MeV can generate a plurality of excited electron-hole pairs in a perovskite thin film via inelastic interactions with the film that can then be extracted as electricity,” Specification, ¶ 88
Therefore, the Specification purports to disclose a nuclear fusion system that generates an energy gain capable of creating commercially viable amounts of power.
However, the Specification does not enable the skilled artisan to produce a “low-energy nuclear reaction” by simply irradiating a fusionable material with electromagnetic radiation (i.e., light from a lamp, as suggested in ¶ 79 of the Specification), as recited in claim 27.
As is known by those having ordinary skill in the art, overcoming the Coulomb barrier to achieve critical ignition for nuclear fusion is only known to occur at extremely high kinetic energies, i.e., extremely high temperatures, such as those present on the sun. Georgia State University1 explains:
“The temperatures required to overcome the coulomb barrier for fusion to occur are so high as to require extraordinary means for their achievement. Such thermally initiated reactions are commonly called thermonuclear fusion. With particle energies in the range of 1-10keV, the temperatures are in the range of 107-108 K.”
The “system for nuclear fusion” claimed by Applicant in claim 27 is not capable of producing or sustaining such reactions.
The system provides no mechanism for achieving and maintaining the temperatures of hundreds of millions of degrees Kelvin known to be required to achieve nuclear fusion.
Instead, Applicant proposes a suspiciously simple mechanism for nuclear fusion: light waves interact with a target, thus resulting in nuclear fusion.
Applicant explains: “The methods and systems may utilize host materials (such as metal nanoparticles) to host fusionable materials (such as deuterium). The host materials and/or fusionable materials may be irradiated with electromagnetic radiation that induces phonon vibrations in the host material and/or fusionable materials. The phonon vibrations may screen the Coulombic repulsion between fusionable material nuclei, thereby increasing a rate of nuclear fusion even at relatively low temperature and pressures,” Specification, ¶ 4.
Specifically for the input source of energy, Applicant suggests: “a laser, lamp, light-emitting diode (LED) or a terahertz (THz) light source or a broadband light source,” Specification, ¶ 79.
In other words, Applicant claims that the simple application of light waves to a deuterium-loaded metal target will cause nuclear fusion.
Applicant repeatedly claims that this occurs at low temperatures and pressures: Specification, ¶ 4, ¶ 6, ¶ 25, ¶ 39, ¶¶ 56–58, ¶¶ 61–63, ¶ 89, ¶ 100, and the abstract. As cited above in the quotation from Georgia State University, the temperature required to nuclear fusion is between 10,000,000 and 100,000,000 Kelvin. Therefore, Applicant’s invention fits squarely into the field of low-temperature nuclear reactions (LENR), or cold fusion.
The presumption that nuclear fusion may occur in a low-temperature environment is wholly unsupported by modern nuclear and plasma physics. Examiner cannot find, and Applicant has not supplied, any reputable and peer-reviewed papers published in which the Applicant’s “light wave” theory for producing sustainable nuclear fusions reactions has been substantiated.
To the contrary, the most supportive paper Examiner could find is by Queisser et al.2, published after Applicant’s effective filing date, whose authors acknowledge that electromagnetic wave-induced fusion remains in the “hopefully this will be figured out in the future” stage: “After understanding the main mechanism better, the next step would be to study whether it could be observed experimentally and which scenario (e.g., beam-beam or beam-target fusion, thermal or inertial fusion) might be most suitable. These findings could then determine the potential for possible future technological applications,” bottom right, page 041601-4. The authors further acknowledge that they don’t even fully understand the underlying mechanism: “In summary, our understanding of tunneling is still far from complete and offers surprises which motivate further studies” (id.).
The well-accepted models pertaining to the structure of the atom and the mechanisms through which various nucleons and electrons interact are incompatible with Applicant’s light-wave theory.
In rejecting said well-accepted models and mechanisms, Applicant admits that “At lower pressures and temperatures, the probability for the reaction of Equation 1 to occur may ordinarily be vanishingly small,” Specification, ¶ 61, but then asserts “However, if the D atoms or ions are confined to a host material (such as in a palladium hydride metal lattice), molecular vibrations of the host material may result in oscillations of the D atoms or ions in a local potential energy minimum, even at temperatures or pressures significantly lower than those at which the reaction of Equation 3 or any other nuclear fusion reaction described herein may readily occur.”
In summary, Applicant’s “system for nuclear fusion” claimed by Applicant in claim 27 utilizing low-temperature nuclear reactions via light waves is incompatible with the mechanisms of nuclear physics as understood by the person having ordinary skill in the art.
Reproducibility
The amount of guidance or direction necessary to enable an invention is inversely related to the amount of knowledge in the state of the art, as well as to the predictability of the art. In re Fisher, 427 F.2d 833,839, 166 USPQ 18, 24 (CCPA 1970); MPEP § 2164.03. The art of the present invention, a device for generating and maintaining an exothermic fusion reaction sufficient to be used as a viable energy source (commercially viable electricity, powering batteries, and driving a steam turbine, as described in the Specification at ¶¶ 82–88) via light waves (“a laser, lamp, light-emitting diode (LED) or a terahertz (THz) light source or a broadband light source,” Specification, ¶ 79) is too undeveloped to be considered to have a body of existing knowledge associated with it, much less predictability of results. Reproducibility must go beyond one’s own laboratory. One must produce a set of instructions—a recipe—that would enable a skilled artisan to produce the same results. If reproducibility occurs only in one’s own laboratory, errors (such as systematic errors) would be suspect.
Reproducibility of alleged low-temperature nuclear fusion results is a critical feature in determining if a disclosure adequately teaches other practitioners how to make and use an invention. Applicant’s disclosure is insufficient as to how the embodiments described therein are based upon valid and reproducible methodology.
Applicant has provided unsupported theory and speculative embodiments based upon questionable science. Therefore, such theories and the experimental results attributed to them are also questionable until such a time that Applicant rigorously proves that the suggested concepts are plausible and the calculations performed statistically sound. Since Applicant has not yet established the operability of the presently claimed invention, it is considered that the invention is lacking in utility. Given the state of the art as here discussed, it would be unreasonable to expect one skilled in the art to be able to make or use the claimed invention without undue experimentation.
Undue Experimentation
It is the Examiner’s position that an undue amount of experimentation would be required to produce an operative embodiment of Applicant’s invention.
In its present form, the disclosure is devoid of useful instruction that might enable a person skilled in the art to follow Applicant's methods, account or control for any necessary assumptions, or manipulate the input data with any expectation of how the outcome may be affected.
Applicant believes they have produced a successful device for achieving nuclear fusion (“a system for nuclear fusion,” claim 27) sufficient to create large amounts of commercially viable energy (commercially viable electricity, powering batteries, and driving a steam turbine, as described in the Specification at ¶¶ 82–88), in a low-temperature environment (“low-energy nuclear fusion reactions,” Specification at ¶ 39; “nuclear fusion even at relatively low temperature and pressures,” abstract).
To determine whether a given claim is supported in sufficient detail (by combining the information provided in the disclosure with information known in the art) such that any person skilled in the art could make and use the invention as of the filing date of the application without undue experimentation, at least the following factors should be included:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
This standard is applied in accordance with the U.S. Federal Court of Appeals decision In re Wands, 858 F.2d at 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988). See also United States v. Telectronics Inc., 857 F.2d 778, 785, 8 USPQ2d 1217, 1223 (Fed. Cir. 1988), cert. denied, 490 U.S. 1046 (1989).
Reviewing the aforementioned Wands factors, Examiner summarizes the above-elaborated explanations as to why Applicant’s invention fails to satisfy the enablement requirement:
(A) The breadth of the claims: Applicant’s claim to achieve nuclear fusion by simply providing light wave radiation onto a fusionable material as recited in claim 27, is extremely broad, as evidenced by its too-simple-to-be-true steps for the alleged application of light (“a source of electromagnetic radiation,” claim 27) followed by an unlikely result (“a nuclear fusion reaction to yield energy”) as well as the fact that this process necessarily abandons modern nuclear physics, such that the outcomes of the recited system cannot be reasonably predicted and measured.
See MPEP § 2164.08.
(B) The nature of the invention: The nature of the invention, i.e., the subject matter to which the claimed invention pertains, revolves around the viability of low-energy nuclear fusion as a substantial source of marketable commercial energy; as currently disclosed by Applicant, such viability involves a complete departure from the accepted and well-tested theories that comprise known nuclear and plasma physics, chemistry, and electromagnetism. As such, the subject matter to which the invention pertains lies outside the realm of working science.
See MPEP § 2164.05(a).
(C) The state of the prior art: The effects claimed by Applicant have not been verified by the existing body of scientific work and are, in fact, incompatible with it.
See MPEP § 2164.05(a).
(D) The level of one of ordinary skill: The level of ordinary skill in the art cannot be ascertained because the art encompassing low-temperature nuclear fusion research lies within the realm of fringe science and subsequently does not possess a recognizable standard level of associated skill.
See MPEP § 2164.05(b).
(E) The level of predictability in the art: Low-temperature nuclear fusion experiments are predictably unable to produce expected, reproducible, or meaningful empirical data.
See MPEP § 2164.03.
(F) The amount of direction provided by the inventor: Wholly insufficient direction is provided to enable the skilled artisan to reproduce the alleged effects.
See MPEP § 2164.03.
(G) The existence of working examples: Examples provided (e.g., the schematic of Figure 8 operated as shown in Figure 12) do not show evidence of nuclear fusion, nor do they provide any of the requisite details for achieving nuclear fusion.
See MPEP § 2164.02.
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure: The quantity of experimentation needed is infinite, as the practical guidance provided is insufficient to enable one to build or operate a working prototype of the invention, and the provided theoretical guidance is insufficient to enable one to understand the underlying sequence of phenomena required to attempt such an endeavor. See MPEP § 2164.06.
As evidenced above, the specification, in its present state, fails to teach a person having ordinary skill in the art how to make and use the invention, and the specification is therefore inadequate. The disclosed invention is not, as required by 35 U.S.C. 101, an operable invention of any practical use to the public. To be patentable, the claimed invention as a whole must be useful and accomplish a practical application. That is, it must produce a “useful, concrete and tangible result.” See In re Alappat, 33 F.3d 1526, 1544, 31 USPQ2d 1557 (Fed. Cir. 1994) and also State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368, 1373-4, 47 USPQ2d 1596 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 851 (1999). The purpose of this requirement is to limit patent protection to inventions that possess a certain level of “real world” value, as opposed to subject matter that represents nothing more than an idea or hopeful concept, or subject matter that is simply a starting point for future investigation or research. For more examples of this real-world applicability requirement being applied, see Brenner v. Manson, 383 U.S. 519, 528-36, 148 USPQ 689, 693-96 (1966); In re Fisher, 421 F.3d 1365, 76 USPQ2d 1225 (Fed. Cir. 2005); In re Ziegler, 992 F.2d 1197, 1200-03, 26 USPQ2d 1600, 1603-06 (Fed. Cir. 1993).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 27 is rejected under 35 U.S.C. 101 because the disclosed invention is inoperative and therefore lacks patentable utility for the detailed reasons provided above in the Specification objection that are accordingly incorporated herein.
Applicant’s claimed invention is directed to a system for producing useful energy from a low-temperature nuclear fusion reaction. The production of said energy from a low-temperature fusion reaction is considered as being Applicant's specified utility: achieve nuclear fusion (“a system for nuclear fusion,” claim 27) for producing large amounts of commercially viable electricity and power (commercially viable electricity, powering batteries, and driving a steam turbine, as described in the Specification at ¶¶ 82–88) in a low-temperature environment (“low-energy nuclear fusion reactions,” Specification at ¶ 39). In describing said specified utility, Applicant has set forth the inadequately supported theory that light waves incident on a target can produce and sustain thermonuclear reactions (Specification, ¶ 79). This fact creates a type of deficiency in which an assertion of specific and substantial utility for the claimed invention made by an Applicant is not credible. See MPEP 2107.01(II) for further examples of the Federal courts’ treatment of inventions claiming incredible utility. The Examiner has provided a preponderance of evidence as to why the asserted operation and utility of Applicant's invention is inconsistent with known scientific principles, making it speculative at best as to whether attributes of the invention necessary to impart the asserted utility are actually present in the invention. As set forth in the objection to the Specification above, there is currently no reputable evidence of record to indicate the invention has been reduced to the point of providing an operative low-temperature nuclear fusion system. See also In re Sichert, 566 F.2d 1154, 196 USPQ 209 (CCPA 1977). Accordingly, the invention as disclosed is deemed inoperable and therefore lacking in utility for its purported purpose of creating the viable amounts of energy disclosed.
Claim 27 is rejected under 35 U.S.C. 101 because the claimed invention is not supported by either a credible asserted utility or a well-established utility, for the reasons set forth in the above objection to the Specification as well as in the section just above this one, which are accordingly incorporated herein.
As set forth in MPEP § 2107.01(IV), a deficiency under 35 U.S.C. 101 also creates a deficiency under 35 U.S.C. 112, first paragraph. See In re Brana, 51 F.3d 1560, 34 USPQ2d 1436 (Fed. Cir. 1995). Citing In re Brana, the Federal Circuit noted,
“Obviously, if a claimed invention does not have utility, the specification cannot enable one to use it.”
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claim 27 is rejected under 35 U.S.C. 112(a) as failing to comply with the enablement requirement. The claim contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention, for the same reasons set forth in the above objection to the Specification, which are accordingly incorporated herein.
Claim 27 is rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claim contains subject matter which was not described in the Specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor at the time the application was filed, had possession of the claimed invention. Specifically, it is doubtful that Applicant had actual or constructive possession of the claimed device at the time of filing.
Claim 27 is rejected under U.S.C. 112(a) because the claimed invention is not supported by either a credible asserted utility or a well-established utility for the same reasons set forth in the above objection to the Specification as well as in the 101 section above, which are accordingly incorporated herein; as such, one skilled in the art clearly would not know how to use the claimed invention.
Claim 27 is rejected under 35 U.S.C. 112(a) because the best mode contemplated by the inventors has not been disclosed. Evidence of concealment of the best mode is based upon the disclosure of the Hagelstein publication (US 2009/0086877) cited herein. Hagelstein discloses a low-temperature system for producing energy by applying electromagnetic radiation to a hydrogen material, i.e., Applicant’s claimed invention. However, as shown in the above objection to the Specification, this system is a variation of the “cold fusion” concept that remains unproven and unworkable. Accordingly, if Applicant's cold fusion system is operative, while Hagelstein’s is not, then the Examiner must conclude that some essential information is missing from Applicant's disclosure that makes Applicant's invention operative.
Any claim not specifically addressed above that depends on a rejected claim is accordingly also rejected under 35 U.S.C. 112(a).
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.
Claim 27 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 27 is rejected under 35 U.S.C. 112(b) as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are the same as those found missing in the above 112(a) best mode rejection. Specifically, the claim recites a system for achieving nuclear fusion using electromagnetic radiation (light) onto a host (metal lattice) with fusionable material (deuterium) inside it. Un-recited but necessary structures must be omitted, because this basic setup can somehow “generate oscillations … sufficient to subject said fusionable material to a nuclear fusion reaction to yield energy.”
Any claim not specifically addressed in this section that depends from a rejected claim is also rejected under 35 U.S.C. 112(b) for its dependency upon an above–rejected claim and for the same reasons.
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 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.
For Applicant’s benefit, portions of the cited reference(s) have been cited to aid in the review of the rejection(s). While every attempt has been made to be thorough and consistent within the rejection, it is noted that the prior art must be considered in its entirety, including disclosures that teach away from the claims. See MPEP 2141.02 VI.
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
Claim 27 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hagelstein (US 2009/0086877).
Note from Examiner: the MPEP at 2121.01 explains that “‘Even if a reference discloses an inoperative device, it is prior art for all that it teaches.’ Beckman Instruments v. LKB Produkter AB, 892 F.2d 1547, 1551, 13 USPQ2d 1301, 1304 (Fed. Cir. 1989). Therefore, ‘a non-enabling reference may qualify as prior art for the purpose of determining obviousness under 35 U.S.C. 103.’ Symbol Techs. Inc. v. Opticon Inc., 935 F.2d 1569, 1578, 19 USPQ2d 1241, 1247 (Fed. Cir. 1991).” In this case, Examiner notes that Hagelstein’s invention is cold fusion and is inoperative. Hagelstein still discloses the claimed system and qualifies as prior art, even though it is inoperative.
Regarding claim 27, Hagelstein discloses a system (e.g., Fig. 24) for nuclear fusion, comprising: a. a chamber (“the material 202 would be contained within a suitable vessel, e.g., made of stainless steel, glass, etc.,” ¶ 328) comprising a host material (202) having a fusionable material (“Material Comprising D2 and/or HD”; “deuterium,” ¶ 312) coupled thereto; b. a source of electromagnetic radiation (Excitation Source 204; “electromagnetic radiation,” ¶ 313) configured to generate oscillations within said host material or said fusionable material, which oscillations are sufficient to subject said fusionable material to a nuclear fusion reaction to yield energy in said chamber (“an excitation source 204 arranged to stimulate the material 202 to generate [nuclear fusion] reactions in the material 202,” ¶ 312; “the vibrational motion (e.g., due to highly excited phonon modes) of the material 202 is generated from the nuclear reactions occurring therein,” ¶ 315); and c. an energy extraction unit (Load 206) configured to extract at least a portion of said energy from said chamber (“a load 206 arranged to remove energy generated by the reactions from the material 202,” ¶ 312).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LILY C GARNER whose telephone number is (571)272-9587. The examiner can normally be reached 9-5 CT.
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LILY CRABTREE GARNER
Primary Examiner
Art Unit 3646
/LILY C GARNER/ Primary Examiner, Art Unit 3646
1 See the 1-page NPL reference in the file 12/20/2023 from Temperatures for Fusion, Department of Physics and Astronomy, Georgia State University: http://hyperphysics.phy-astr.gsu.edu/hbase/NucEne/coubar.html
2 Queisser, Friedemann, and Ralf Schützhold. "Dynamically assisted nuclear fusion." Physical Review C 100.4 (2019): 041601.
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