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Unrren States PATENT AND TRADEMARK OFFICE. ae SMSO ea THAI OND “Rade Rost Tae0o1 ma HEDMAN & COSTIGAN, P-C. — ‘ONE ROCKEFELLER PLAZA, 11TH FLOOR BURKE, SEAN NEW YORK, NY 10020 Please find below and/or attached an Office communication concerning this application or proceeding. ‘The time period for reply, if any, is set in the attached communication Notice of the Office communication was s ronically on above-indicated "Notification Date" to the following e-mail address(es): ipdocket PIOL-90A (Rev, 08107) ‘Application No. Applicant(s) 127736, 188 ROSSI, ANDREA Office Action Summary Examiner Tk Unit] AIR re rT Fy SEAN P. BURKE 3646 oon = The MAILING DATE of this communication appears on the cover sheet with the correspondence address = Period for Reply A SHORTENED STATUTORY PERIOD FOR REPLY IS SET TO EXPIRE 3 MONTHS FROM THE MAILING DATE OF THIS COMMUNICATION. er ay be aaa dt vl 37 FR 1.195). ee wen. nays UNO peed rep spaced above he aime scary per wi apy andl xe SK 2) MONTHS rm th malin dal. hs communcaton False trop witn the et or exonced prod fo rep ily sale cate fw applcaton to become ABANDONED @5 US 6 § 138 fey treed Cie i afer tain att ia soraion, vo ny es Ma os y Status 1) Responsive to communication(s) filed on 12/15/2014. DIA deciaration(s)/affidavit(s) under 37 CFR 1.130(b) was/were filed on 2a)Q3) This action is FINAL. 2000 This action is non-final 3). An election was made by the applicant in response to a restriction requirement set forth during the interview on ___ the restriction requirement and election nave been incorporated into this action. 4)C1 Since this application is in condition for allowance except for formal matters, prosecution as to the merits is closed in accordance with the practice under Ex parte Quayle, 1985 C.D. 11, 453 0.G. 213, Disposition of Claims" 5) Claim(s) 1-7,9 and 10 is/are pending in the application. 5a) Of the above claim(s)___ is/are withdrawn from consideration 6) Claim(s)___ is/are allowed. 7)B Claims) 4-79 and 10 is/are rejected. 8) Claims) is/are objected to. 9) Ciaim(s) are subject to restriction andor election requirement. * ifany claims have been determined allowable, you may be eligible to benefit from the Patent Prosecution Highway program at a peticipating intellectual property office forthe corresponding application. For more information, please see tp uw uspte covinatentsinlt eventsioohiindex isp or send an inquiy to PPHleedback@uspto.cov Application Papers 10)04 The specification is objected to by the Examiner 11)[] The drawing(s) filed on ___ is/are: a)[] accepted or b)[] objected to by the Examiner. Applicant may not request that any objection to the drawing(s) be held in abeyance. See 37 CFR 1.85(a). Replacement drawing sheet(s) including the correction is required ifthe drawing(e) is objacted to, Soe 37 CFR 1.121(4) Priority under 35 U.S.C. § 119 12)L] Acknowledgment is made of a claim for foreign priority under 35 U.S.C. § 119(a)-(d) or (1). Certified copies: a)CIAll b)L) Some™ cL None of the 1.01 Certified copies of the priority documents have been received. 20) Certified copies of the priority documents have been received in Application No. __ 3.0) Copies of the certitied copies of the priority documents have been received in this National Stage application from the International Bureau (PCT Rule 17.2(a)) “ S00 the attached detailed Office action fra list ofthe carted copies not received. Attachment(s) 1+) Ly Notice of Retecences Cited (PTO-892) 3) CI interview Summary (PTO-413) Paper No(s) Mail Date 2) D) information Disclosure Statement(s) (PTO'SBI08a and/or PTO'SBI08b) Paper No(s)Maii Date. 4) omer: Detaled Action Provaee ew tt) tie Action Summary Pantot Application/Control Number: 12/736,193 Page 2 Art Unit: 3646 1. The present application is being examined under the pre-AIA first to invent provisions. DETAILED ACTION Response to Arguments 2. Applicant's arguments filed 15 December 2014 have been fully considered but they are not persuasive. Applicant's submission has included 66 pages of additional material to overcome the prior utility rejections. These references are not persuasive collectively or individually. A detailed response follows. 3, Regarding the Levi paper,’ the experimental setup is flawed because the control (‘dummy") set up was tested under completely separate conditions. As the Examiner interprets these results, the dummy setup was designed to test the thermal output of the E-Cat rods without the enriched hydrogen-loaded nickel powder. Levi argues “the data relevant to the dummy reactor served the purpose of checking the method used. However, it was not meant to compare the operation of the loaded reactor to the dummy run." If the dummy tests were not used as a control, then it is not clear what thermal energy is generated by the charging powder and what is generated by simple ohmic heating. The reference makes no attempt to clarify this issue. 4. Next, Levi attempts to convert the temperatures recorded by the thermal imaging cameras’ to units of power using the Stefan-Boltzman relationship. According to Levi, " See "Observation of abundant heat production from a reactor device and of isotopic changes in the fuel," Leviet al., publisher and publication date not supplied. Pidat6. > Levi argues that "the ridges {of the E-Cat device] made thermal contact with any thermocouple probe placed on the outer surface of the reactor extremely critical, making any direct temperature measurement Application/Control Number: 12/736,193 Page 3 Art Unit: 3646 the emissivity of aluminum outer shell was retrieved from the literature, but because material could not be extracted from the rods, Levi simply adapted” the emissivity trend from the known outer shell to the unknown “pure alumina, crystalized” and applied it. Here, it is unclear why one would not simply determine this value empirically. The only use for a literature reference would be to verify the validity of the empirical value. 5. __Itis further unclear why Levi chose to calculate the emission values from the dummy rod at all. By his own admission, the operation of the reactor cannot be compared to the operation of the dummy system. Indeed, they were not even operated in the same temperature regimes. 6. Asthe Applicant is aware, emissivity is a notoriously difficult value to measure as the same object can have different values based upon the object's surface temperature, view angle and imaging sensitivity. One of ordinary skill in the art would have cause to doubt the Levi results because 1) there appears to have been no control experiment, 2) Levi adapted emissivity values from an entirely different experimental setup and 3) the only attempt at empirical verification came from the same equipment that was to be calibrated, 7. Additionally, Levi was apparently not permitted to inspect the structure of the device. In discussing the formation of the Ragone plot, Levi states "Considering that we do not know the internal structure of the reactor, and therefore cannot completely rule out that there were other charges inside it besides the one weighed and inserted by us, ‘we may repeat the above calculations taking the weight of the entire reactor...into with the required precision impossible.” id. at 7. However, high temperature thermocouples do exist and a casual review of the literature reveals that one could be obtained that may operate up to 130°C. Application/Control Number: 12/736,193 Page 4 Art Unit: 3646 consideration.” This statement alone indicates that Levi did not have independent control over the device as he previously stated. 8. Extraordinary evidence is required to prove extraordinary claims. In an art which has been awash with false positives and outright fraud, it is simply unacceptable for an independent researcher to test a device without determining if the device is what it purports to be. Levi's statement alone is enough to discredit, if not outright disqualify the reference as proof of operation. However, Levi's passage on fuel analysis is so troubling as to represent a completely independent cause for objection. 9. Levi states that the "large amount of heat is, as pointed out above, way beyond what can be expected from chemical burning, which only involves chemical rearrangements of the fuel material at the atomic scale, i.e. by transforming atomic binding energies to kinetic energy."* This statement is supported by the observation that the fraction to ’Li decreases dramatically.° 10. If this is the basis of the reaction, there are two possible explanations: 1) the fraction of 7Li was reduced by a nuclear reaction or 2) the fraction of °Li was increased as the product of a heretofore unknown exothermic nuclear reaction which produces °Li from nickel, aluminum and or hydrogen. Levi assumes that the first explanation occurs, specifically by virtue of the p+ 7Li > 2 *He reaction, However, Levi points out that even under ideal circumstances, one cannot burn enough ‘Li to produce the measured heat values. Accordingly, Levi moves on to the other fuel materials. 1 at27 “Id. at 28. Application/Control Number: 12/736,193 Page 5 Art Unit: 3646 11. Levi argues that the additional energy comes from the burning of various nickel isotopes. Specifically, the fractions of **Ni, Ni, *'Ni and “Ni appear to fall from values as high as 68% to effectively zero. The product analysis shows that concentration of ©2Nji goes from about 4% to about 99%. Levi states that "[e]videntally, there is an isotope shift in Nickel" and goes on to propose and subsequently reject possible reaction mechanisms.° However, Levi notes "[t]he reaction speculation above should only be considered as an example of reasoning and not a serious conjecture.” 12. Alarger problem arises from the nickel data: If the quantities were depleted as testified by Levi, the E-Cat machine would have failed for lack of fuel. However, a plot of the power data shows no relationship between the fuel and the time of operation. As plot 8 of Levi shows, the E-Cat power reaches a peak at Day 32 - precisely when 99% of the nickel has "burned off." Thus, there is no credible evidence that nickel is transmuted in the E-Cat machine.” 13. The Levi paper illustrates poor laboratory practice and, by the author's own admission, bald speculation. Coupled with the fact that Levi did not (or could not) inspect the inner construction of the device, one of ordinary skill in the art to doubt the operability of the claimed device. * Levi's analysis indicates a total lack of understanding regarding nuclear fusion. On page 29, the author proposes one mechanism invalving the p + “Ni — *°Cu + 7. Levi correctly points out that this reaction cannot occur in the E-Cat, “since no gammas are observed.” Despite this acknowledgement, the author goes on to use the energy released from the reaction to show that the -Cat fuel could contain enough energy to explain the net power measurements. Levi acknowiedges on page 29 that there are no other radiation products found in the spent fuel. Levi argues, “Ihe absence of any nuclear radiation from the burning process is presently an open question, land has to be understood.” The onus is not on the author to explain the absence of a nuclear reaction products. Itis to explain that a reaction is occurring in the first place. Application/Control Number: 12/736,193 Page 6 Art Unit: 3646 14. Regarding the Bianchini paper,° the paper is not directed to the operation of the E-Cat device. According to Bianchini, the radiation measurements were made before and after the operation of the device and indicated no radioactive by-products. This fact is not in dispute. However, Bianchini further notes that no radiation by-products were detected during operation 15. Regarding the Bexell paper,’ the paper appears to be the basis for the spent fuel analysis discussed above. While the results may or may not be correct, the application of these results is objectionable for the reasons disclosed above. 16. Regarding the Pettersson paper,"° the paper appears to be the basis for the spent fuel analysis discussed above. While the results may or may not be correct, the application of these results is objectionable for the reasons disclosed above. 17. Regarding Exhibit B,"' this reference is a blog posting and contains no objective evidence of operation. Specification 18. The specification is objected to as inoperable. Specifically, there is no evidence in the corpus of nuclear science to substantiate the claim that nickel will spontaneously ionize hydrogen gas and thereafter "absorb" the resulting proton. Note that the reaction 58Ni(/0,7)°°Cu is known and has been experimentally observed, it is in context of an accelerated proton beam into a nickel target. The element of acceleration is necessary ® “Radiation measurements during the long-term test of the E-Cat prototype.” Bianchini, publisher and ublication date unknown, Investigation of a fuel and its reaction product using SEM/EDS and ToF-SIMS," Ulf Bexell and Josetin Hall, publisher and publication date unknown. '° "Results ECAT ICP-MS and ICP-AES,” Jean Pettersson, publisher and publication date unknown, "' sHell Freezes Over: Brian Ahern’s Doubts on E-Cat Test Resolved,” Hank Mills. Application/Control Number: 12/736,193 Page 7 Art Unit: 3646 in this matter - itis the only way for the proton to overcome the basic Coulomb repulsion between the proton and the nickel nuclei 19. There is presently no credible peer-reviewed evidence to demonstrate the spontaneous fusion of nickel and protons. Additionally, one of ordinary skill in the art would be skeptical that the reaction could occur as claimed because no element overcomes the natural Coulomb repulsion between the interacting nuclei. 20. Additionally, the Examiner notes that if the reaction occurred as claimed by the Applicant, it would also spontaneously occur in nature. This would lead to two important results: first, as a natural phenomenon, it would not be patentable subject matter second, the ambient supply of hydrogen would cause any sample of nickel to automatically undergo the reaction - a reaction which would produce damaging - and noticeable - gamma emissions. No such emissions have ever been observed. 21. Accordingly, the specification and all claims are found to be inoperable. Claim Rejections - 35 USC § 101 22. 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 ths tt. 23. Claims 1-10 are rejected under 35 U.S.C. 101 because the disclosed invention is inoperative and therefore lacks utility. The claims are rejected for the reasons disclosed above. Claim Rejections - 35 USC § 112 24. The following is a quotation of the first paragraph of 35 U.S.C. 112(a) Application/Control Number: 12/736,193 Page 8 Art Unit: 3646 (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. The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: 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 itis most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. 25. Claims 1-10 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AlA), first paragraph, as failing to comply with the enablement requirement. The claim(s) 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. Specifically, any claim that is inoperable is necessarily non-enabled. In re Swartz, 232 F.3d 862 (Fed. Cir. 2000) Claim Rejections - 35 USC § 103 26. The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action (@) Apatent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of ths tile, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been ‘obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains, Patentabllty shall nat be negatived by the manner in which the invention was made, 27. The factual inquiries set forth in Graham v. John Deere Co., 383 US. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows: Application/Control Number: 12/736,193 Page 9 Art Unit: 3646 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. 28. Claims 1 and 7 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Butler et al., "Radiative Proton Capture by Ni®, Ni®, and Co™." 29. Notwithstanding the inoperability of the claimed device, the reaction itself is obvious over Butler. Note, the Butler device uses the more traditional method of nucleosysynthesis which employs accelerating protons into a stationary target. However, even if the alleged reaction could occur, one of ordinary skill in the art would understand that the reaction would be subject to varying the basic reaction parameters. 30. Accordingly, claims 1 and 7 are rejected as obvious over Butler. Conclusion 31. THIS ACTION IS MADE FINAL. 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 extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of Application/Control Number: 12/736,193 Page 10 Art Unit: 3646 the advisory action. Inno event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN P. BURKE whose telephone number is (571)270- 5493. The examiner can normally be reached on Monday-Friday, 10:00 AM to 6:30 PM EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Jack Keith can be reached on (571) 262-6878. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. 1S. P. B/ Examiner, Art Unit 3646 WACK W KEITH/ Supervisory Patent Examiner, Art Unit 3646