Ex Parte .6909340 et alDownload PDFPatent Trial and Appeal BoardSep 27, 201395001595 (P.T.A.B. Sep. 27, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 95/001,595 04/04/2011 .6909340 1238-86674-01 1181 57299 7590 09/27/2013 Kathy Manke Avago Technologies Limited 4380 Ziegler Road Fort Collins, CO 80525 EXAMINER DEB, ANJAN K ART UNIT PAPER NUMBER 3992 MAIL DATE DELIVERY MODE 09/27/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ______________ AVAGO TECHNOLOGIES WIRELESS IP (SINGAPORE), PTE., LTD, INC., Patent Owner and Appellant v. TRIQUINT SEMICONDUCTOR, INC., Third-Party Requester1 ______________ Appeal 2013-009112 Reexamination Control No. 95/001,595 United States Patent 6,909,340 B22 Technology Center 3900 ______________ Before JOHN C. MARTIN, ROMULO H. DELMENDO, and ERIC B. CHEN, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL 1 The Third-Party Requester did not file a notice of appeal, an appeal brief, or a respondent brief. 2 This patent (hereinafter the “‟340 patent”) issued on June 21, 2005, based on Application 10/446,984, filed May 27, 2003, which is identified as a continuation of Application PCT/EP01/12825, filed on November 6, 2001. ‟340 patent 1:7-9. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 2 Patent Owner Avago Technologies Wireless IP (Singapore), PTE., Ltd, Inc., (hereinafter “Patent Owner”) appeals under 35 U.S.C. §§ 134(b) and 315(a) from the Examiner‟s rejection of claims 1-12 and 15-34 for the ‟340 patent. We have jurisdiction under 35 U.S.C. §§ 6, 134, and 315. We AFFIRM. I. STATEMENT OF THE CASE A. Related Litigation The ‟340 patent is the subject of pending litigation captioned TriQuint Semiconductor, Inc., v. Avago Technologies, Limited et al., No. 09-01531- PHX-JAT (D. Ariz.) (hereinafter “Arizona litigation”). “REQUEST FOR INTER PARTES REEXAMINATION OF U.S. PATENT NO. 6,909,340” (hereinafter “Request”), filed April 4, 2011, at 9, section III.3 B. This Reexamination Proceeding The subject matter at issue is a bulk acoustic wave filter utilizing resonators having different aspect ratios. ‟340 patent, title. The Request asked for reexamination of claims 1-12 (all of the original patent claims) for unpatentability under 35 U.S.C. § 102 and/or § 103(a) 3 Patent Owner‟s “APPEAL BRIEF” (hereinafter “Brief”), filed August 21, 2012, incorrectly identifies the relevant patent involved this litigation as U.S. Patent 7,268,436 (hereinafter the “436 patent”). Br. 3, heading 2. The „436 patent is the subject of pending Inter Partes Reexamination Proceeding 95/001,349. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 3 based on the following references, all of which are relied on in the rejections on appeal: AAPA (Applicants‟ admitted prior art);4 Ishii;5 Hayashi;6 Bradley;7 and Rittenhouse.8 Request 7 (table of proposed rejections). The Request (e.g., at 23) also discusses Larson,9 which issued based on Application 09/282,082, filed March 30, 1999, and is incorporated by reference in Bradley. Bradley 8:41-52. Reexamination of claims 1-12 was ordered on June 15, 2011. A non- final Office action, mailed on the same date, included rejections of claims 1- 12 under 35 U.S.C. §§ 102 and 103(a) based on the above references (excluding Larson). In a “RESPONSE BY PATENT OWNER IN INTER PARTES REEXAMINATION REQUEST” (hereinafter “Patent Owner‟s First Response” or “P.O. 1st Resp.”), filed September 15, 2011, Patent Owner amended independent claims 1 and 12 and added claims 13-34 (including independent claim 25). P.O. 1st Resp. 6-10. The amendment of claims 1 and 12 included further specifying that the already-recited “plurality of bulk 4 AAPA includes “Prior Art” Figures 1-4 of the ‟340 patent and the associated descriptions at columns 1, 2, 5, and 6. Request 4 and 14-18. 5 Ishii, et al., Japanese Laid Open Application No. 5-259804, published October 8, 1993. Request Ex. II-3 (which includes a certified translation by Patent Translations, Inc.). 6 Hayashi, et al., Japanese Laid Open Application No. 10-135775, published May 22, 1998. Request Ex. II-2 (which includes a certified translation by Patent Translations, Inc.). 7 Bradley, et al., US 6,262,637 B1, issued July 17, 2001. Request Ex. II-4. 8 Rittenhouse, et al., US 6,377,136 B1, issued April 23, 2002. Request Ex. II-1. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 4 acoustic wave resonators” are “each configured to operate in a thickness extensional mode,” a limitation that also appears in new claim 25. Id. at 6, 7, and 9. Patent Owner also proposed to amend Figure 10 by adding arrows identifying the x, y, and z axes of the resonator structure depicted therein (id. at 5 and App. I) and to amend the specification to: (i) discuss Figure 10 as amended; and (ii) describe the resonators as configured to operate in a thickness extensional mode. Id. at 3-4. Requester on October 17, 2011, filed the “THIRD PARTY REQUESTER‟S COMMENTS ON THE PURPORTED PATENT OWNER‟S RESPONSE TO OFFICE ACTION” (hereinafter “Requester‟s First Comments” or “Req. 1st Comments”). Requester proposed rejections of the amended and new claims on one or more of the following grounds: (a) under 35 U.S.C. § 112, first paragraph (written description and best mode requirements) for failure of the ‟340 patent to describe “a thickness extensional mode”; (b) under 35 U.S.C. § 305(a) for improper broadening; (c) under 35 U.S.C. § 102 based on Bradley; and (d) under 35 U.S.C. § 103(a) based on the previously applied references and a newly cited reference to Matsumoto.10 Req. 1st Comments 1 (Table of Contents). Requester also 9 Larson, et al., US 6,215,375 B1, issued April 10, 2001. Request Ex. II-5. 10 Matsumoto, et al., US 7,554,427 B2 (Req. 1st Comments Ex. II-7), issued June 30, 2009, based on Application 11/705,520, filed February 13, 2007, which is subsequent to the May 27, 2003, actual filing date of Application 10/446,984, which issued as the ‟340 patent under reexamination. Requester contends that Matsumoto is available as a reference because the amended and new claims of the ‟340 patent lack written description support. Req. 1st Comments 40 n.21. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 5 argued that the term “areal dimension” in new claims 13 and 14 is indefinite (id. at 10) and objected to the amendments to the Specification and Figure 10 as containing new matter. Id. at 10-11. These comments were accompanied by the following expert declaration of Dr. Wright, an employee of Requester TriQuint, Inc.: “DECLARATION OF PETER V. WRIGHT UNDER 37 C.F.R. § 1.132” (hereinafter “Wright Declaration”). Req. 1st Comments Ex. II-8; Wright Decl. para. 5. In an Action Closing Prosecution (ACP), mailed January 20, 2012, the Examiner entered all of Requester‟s proposed rejections with the exception of the § 102 rejection. ACP 6-8 (table). The Examiner also rejected claims 13 and 14 under 35 U.S.C. § 112, second paragraph (for indefiniteness of “areal dimension”) (id. at 6, 13) and repeated the objection to the amendments to the Specification and Figure 10. Id. at 8-10. In a “RESPONSE BY PATENT OWNER IN INTER PARTES REEXAMINATION TO ACTION CLOSING PROSECUTION (ACP)” (“Patent Owner‟s Second Response” or “P.O. 2d Resp.”), filed February 21, 2012, Patent Owner proposed to further amend claims 1 and 12 (labeled “Twice-Amended”) and to revise new claim 25. P.O. 2d Resp. 6-9. Patent Owner also proposed to cancel new claims 13 and 14 (id. at 8) and delete the proposed amendment to Figure 10. Id. at 5. This response was accompanied by the following declaration by one of the coinventors named in the ‟340 patent: “DECLARATION OF DR. LUEDER ELBRECHT UNDER 37 C.F.R. § 1.132” (hereinafter “Elbrecht Declaration”). Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 6 In “THIRD PARTY REQUESTER‟S RESPONSE TO AVAGO‟S RESPONSE TO ACTION CLOSING PROSECUTION” (“Requester‟s Second Comments” or “Req. 2d Comments”), filed March 22, 2012, Requester proposed that the twice-amended claims and revised new claims be rejected under 35 U.S.C. § 112, first paragraph (written description and best mode requirements), 35 U.S.C. § 305(a), and 35 U.S.C. §103(a) and that the objection to the Specification be maintained. Req. 2d Comments 1-2 (Table of Contents). The Right of Appeal Notice (RAN), mailed on May 22, 2012, approves (at form PTOL-2066) entry of the new proposed amendments and adopts (at 6- 47) Requester‟s proposed rejections, incorporating by reference the arguments presented in Requester‟s Second Comments (referred by the Examiner as the comments filed “3/22/2012”). See, e.g., RAN 11. Patent Owner filed a Notice of Appeal on June 21, 2012, and the above- mentioned Brief on August 21, 2012.11 As already noted, Requester did not file a notice of appeal, an appeal brief, or a respondent brief. The Examiner‟s Answer, mailed on February 28, 2013, incorporates by reference all of the grounds of rejection set forth in the RAN. Answer 8-9, sec. 10. The Answer (at 6-7, sec. 6.1) also faults the Brief for failing to address the rejection of claims 1-12 and 15-34 under 35 U.S.C. § 305(a). The 11 We note that the Brief cites throughout to the ACP rather than to the RAN. See, e.g., Br. 16. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 7 “Response to Argument” section (at 9-16, sec. 13) of the Answer essentially repeats the positions stated in the RAN. Patent Owner‟s “REBUTTAL BRIEF” (hereinafter “Reb. Br.”), filed on March 27, 2013, addresses all grounds of rejection, including (id. at 35) the rejection under 35 U.S.C. § 305(a). C. The Invention Described in the ’340 Patent The invention described in the ‟340 patent relates to bulk acoustic wave filters, which can take the form of bulk acoustic wave resonators or stacked crystal filters. ‟340 patent 1:15-18. Bulk acoustic wave resonators typically include a piezo-electric layer arranged between the two electrodes. Id. at 1:19-21. As noted above, AAPA, relied on in some rejections, includes “Prior Art” Figures 1-4 of the ‟340 patent and the associated descriptions at columns 1, 2, 5, and 6. Figure 1 (labeled “Prior Art”) is reproduced below. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 8 Figure 1 shows a cross section through a bulk acoustic wave resonator. Id. at 1:27-28. This resonator includes electrodes 1 and 2, a piezo-electric layer 3, a substrate 4, and an acoustic mirror consisting of two low-Z layers 5 and two high-Z layers 6. Id. at 1:28-39. Figure 2 (labeled “Prior Art”) is reproduced below. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 9 Figure 2 shows a cross section through a stacked crystal filter. Id. at 1:47-48. The stacked crystal filter includes: a substrate 7; a membrane 8; a first, lower electrode 9; a first, lower piezo-electric layer 10; a second, upper piezo- electric layer 11; a second, central electrode 12; and a third, upper electrode 13. Id. at 1:48-51. The substrate 7 has a cavity 14 which is used to reflect the acoustic oscillations of the piezo-electric layers. Id. at 1:58-60. In the ‟340 patent, the expression “bulk acoustic wave resonator” refers to either one of the devices depicted in Figures 1 and 2. Id. at 2:32-36. Figure 3 (labeled “Prior Art”) is reproduced below. Figure 3 is a view of two electrodes mounted one on top of the other, namely, a lower electrode 15 and an upper electrode 16, which may have any desired geometric shape. Id. at 2:11-14. The “effective resonator surface” corresponds to the overlapping (i.e., shaded) area of the electrodes when the two electrodes are projected in a plane. Id. at 2:14-19. According to the ‟340 patent: One particular problem with the use of bulk acoustic wave filters is the spurious modes of the bulk acoustic wave resonators Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 10 from which the filters are formed. These spurious modes lead to interference spikes in the electrical impedance curve of the bulk acoustic wave resonators, which then also have a disadvantageous effect on the pass band of the filters. Id. at 2:43-48. Various approaches to suppressing these spurious modes are known from the prior art, including providing the electrodes with roughened edges in a random pattern, as taught by U.S. Patent 5,903,087. Id. at 2:53-57. Although the spurious modes are thus suppressed, this method results in major energy losses, which affect the Q-factor of the main resonances. Id. at 2:59-62. Figure 4 (labeled “Prior Art”) of the ‟340 patent is reproduced below. Figure 4 shows a plan view of a prior art two-stage conductor filter comprising four square bulk acoustic wave resonators that are the same size and thus have identical effective resonator surfaces. Id. at 5:38-39; 5:66-6:2. Id. at 6:2-4. As a result, the spurious modes of all four resonators occur at Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 11 the same frequency points and can be found in a corresponding manner in the electrical response of the filter. Id. at 6:4-7. The solution described in the ‟340 patent is to provide the bulk acoustic wave resonators in the bulk acoustic wave filter with “effective resonator surfaces which differ in the surface shape and/or surface content,” thereby “allow[ing] spuriuous modes to be suppressed to an even greater extent.” ‟340 patent 3:41-46. Dr. Elbrecht explains, without challenge, that the phrase “surface content” refers to the “active area” of the resonator. Elbrecht Decl. para. 13. Figure 5 is reproduced below. Figure 5 shows a two-stage conductor filter comprising four bulk acoustic wave resonators with effective resonator surfaces that are described as having “different surface contents,” with the result that “[e]ach resonator has different spurious mode frequencies.” Id. at 6:8-11. This produces “an averaging effect, so that the individual spurious modes in the filter response Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 12 cannot be noticed so strongly in comparison to the prior art embodiment shown in FIG. 4.” Id. at 6:11-15. Furthermore, the bulk acoustic wave resonators can have different aspect ratios. Id. at 3:47-50. Figure 6 is reproduced below. Figure 6 shows a two-stage conductor filter comprising four bulk acoustic wave resonators with effective resonator surfaces having different aspect ratios, although their surface contents (i.e., areas) are the same. Id. at 6:16- 19.12 “The aspect ratio influences the position of the spurious modes in a similar way to that in the embodiment shown in FIG. 5, although the 12 The ‟340 patent defines the term “aspect ratio” as follows: The aspect ratio is the smallest dimension of the resonator within the surface plane divided by the largest dimension of the resonator within the surface plane. The directions of these two dimensions need not be perpendicular to each other. For a parallelogram, for instance, the aspect ratio would be the distance between the two opposing acute-angled corners divided by the distance between the two long opposing sides. ‟340 patent 3:50-57. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 13 impedance level of the filter remains unchanged at the same time.” Id. at 6:19-22. Each of independent claims 1, 12, and 25 recites a filter having a plurality of resonators with different aspect ratios. Figures 9-14, of which Figure 11 is reproduced below, show a one- stage, a one and a half-stage, a two-stage, a two and a half-stage, a three- stage, and a three and a half-stage filter, respectively. Id. at 5:57-59. Figure 11, as noted therein, shows a two-stage ladder filter including two series resonators and two shunt resonators. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 14 B. The Claims on Appeal The independent claims on appeal are twice-amended claims 1 and 12 and new claim 25, all of which are presented at pages 6-9 of Patent Owner‟s Second Response. Claims 1 and 12 as set forth therein (and as reproduced in the Claims Appendix to the Brief at pages 40-42) are not in the proper format, which requires showing only the differences between the currently amended (i.e., twice-amended) claims and the original claims.13 Instead, twice- amended claims 1 and 12 show (i) how these claims were initially amended at pages 6-8 of Patent Owner‟s First Response and (ii) how these initial amendments were subsequently modified by Patent Owner‟s Second Response. For example, the second paragraph of claim 1 (twice-amended) includes two occurrences of the phrase “[one] [a] one,” which indicates that “one” was replaced with “a” by Patent Owner‟s First Response, after which “a” was changed back to “one” by Patent Owner‟s Second Response.14 Also, new claim 25 as presented in Patent Owner‟s First Response (at 9) was amended by the Second Response (at 9) by replacing “a” with “one.” 13 See M.P.E.P. 2666.01 (rev. Aug, 2012) (referring to “MPEP § 2250 for guidance as the manner of making amendments in a reexamination proceeding”) and § 2250(IV)(F)(3) (“The word bone was presented in the first amendment and is now to be deleted in the second amendment. Thus, „bone‟ is NOT to be shown in brackets in the second amendment. Rather, the word „bone‟ is simply omitted from the claim, since „bone‟ never appeared in the patent.”). 14 These amendments are addressed below in the discussion of the rejection under 35 U.S.C. § 305(a). Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 15 Claims 1 and 12 as reproduced below show only the differences between the twice-amended and original claims, in accordance with the required format. Amended claim 1 in the correct format reads as follows: 1. (Twice Amended) A bulk acoustic wave filter, comprising: a plurality of bulk acoustic wave resonators each configured to operate in a thickness extensional mode; each of said plurality of bulk acoustic wave resonators [having]comprising: a substrate, [at least one first] a first electrode disposed over said substrate, one piezoelectric layer disposed over said first electrode; and one second electrode disposed over said piezoelectric layer; and said plurality of bulk acoustic wave resonators having effective resonator surfaces with different surface shapes and/or different surface contents[;], wherein the effective resonator surfaces of all of said plurality of bulk acoustic wave resonators [having]have different aspect ratios[;], and the aspect ratios of the effective resonator surfaces [being]are between 1:1 and 1:5. Claims App., Br. 40 (altered in the above-described manner). Amended claim 12, which reads as follows in the correct format, recites a narrower range of aspect ratios than the range recited in claim 1: 12. (Twice Amended) A bulk acoustic wave filter, comprising: a plurality of bulk acoustic wave resonators each configured to operate in a thickness extensional mode; each of said plurality of bulk acoustic wave resonators [having] comprising: a substrate, [at least one]a first electrode, one piezo-electric layer and one second electrode; and said plurality of bulk acoustic wave resonators having effective resonator surfaces with different surface shapes and/or different surface contents[;], wherein the effective resonator Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 16 surfaces of all of said plurality of bulk acoustic wave resonators [having]have different aspect ratios[;], and the aspect ratios of the effective resonator surfaces [being]are between 1:1.5 and 1:3. Id. at 41-42 (altered in the above-described manner). Claim 25, reproduced below in the correct format, recites the same range as claim 1 and also recites that “each resonator ha[s] different spurious mode frequencies: 25. (New) A bulk acoustic wave filter, comprising: a plurality of bulk acoustic wave resonators each configured to operate in a thickness extensional mode; each of said plurality of bulk acoustic wave resonators comprising: a substrate, at least one first electrode, one piezo- electric layer and one second electrode, each resonator having different spurious mode frequencies; and said plurality of bulk acoustic wave resonators having effective resonator surfaces with different surface shapes and/or different surface contents, wherein the effective resonator surfaces of all of said plurality of bulk acoustic wave resonators have different aspect ratios and the aspect ratios of the effective resonator surfaces are between 1:1.5 and 1:3. Id. at 43 (Br. 41-43) (altered in the above-described manner). Except where otherwise noted (i.e., in the discussion of the § 305(a) rejection), quotations below from claims 1, 12, and 25 are from the corrected claims as reproduced above. C. The Rejections Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 17 The rejections before us are as follows: References (where applicable) Basis Claims challenged Rejection stated at 112 ¶ 1 (description req‟t) 1-12 and 15-34 RAN 10 112 ¶ 1 (best mode req‟t) 1-12 and 15-34 RAN 10-11 305(a) 1-12 and 15-34 RAN 12 AAPA and Ishii 103(a) 1-4, 9-12, 15-17, 22-27, and 32- 34 RAN 15 AAPA, Ishii, and Hayashi 103(a) 1-12 and 15-34 RAN 19 Bradley 103(a) 1, 2, 5-7, 10-12, 15, 18-20, 23- 25, 28-30, 33, and 34 RAN 2315 Bradley and Ishii 103(a) 1, 2, 5-7, 9-12, 15, 18-20, 22- 25, 28-30 and 32-34 RAN 26 Bradley, Ishii, and Hayashi 103(a) 1-12 and 15-34 RAN 30 Rittenhouse and Ishii 103(a) 1, 2, 9-12, 15, 22-25, and 32- 34 RAN 34 Rittenhouse, Ishii, and AAPA 103(a) 3, 4, 16, 17, 26, and 27 RAN 37 Rittenhouse, Ishii, AAPA, and Hayashi 103(a) 1-12 and 15-34 RAN 38 Hayashi, Ishii, and 103(a) 1-12 and 15-34 RAN 42 15 The § 103(a) rejection based on Bradley alone was initially proposed in Requester‟s First Comments at page 31. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 18 AAPA Matsumoto 103(a) 1, 12, 15, and 25 RAN 47 In arguing all of the rejections, Patent Owner treats the dependent claims as standing or falling with independent claims 1, 12, and 25. See, e.g., Br. 19. D. Objection to Specification The Specification stands objected to under 35 U.S.C. § 132 for containing new matter by being amended to state that the resonators are configured to operate in thickness extensional mode. RAN 11.16 This objection is appealable rather than petitionable because it involves the same subject matter that is the subject of the § 112, first paragraph, rejection for lack of written description support.17 II. DISCUSSION A. The Rejection Under 35 U.S.C. § 305(a) (Claims 1-12 and 15-34) (RAN 49) 16 M.P.E.P. § 2163.06(I) (rev. Aug. 2012), cited by Requester (Req. 2d Comments 11), reads as follows: “If new subject matter is added to the disclosure, whether it be in the abstract, the specification, or the drawings, the examiner should object to the introduction of new matter under 35 U.S.C. 132 or 251 as appropriate, and require applicant to cancel the new matter.” 17 See M.P.E.P. § 608.04(c) (rev. Aug. 2012) (“Where the new matter is confined to amendments to the specification, review of the examiner‟s requirement for cancelation is by way of petition. But where the alleged new matter is introduced into or affects the claims, thus necessitating their rejection on this ground, the question becomes an appealable one, and should not be considered on petition even though that new matter has been introduced into the specification also.”). Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 19 Requester initially proposed a rejection under 35 U.S.C. § 305(a) in response to the following initial amendments of the second paragraphs of original claims 1 and 12: 1. (Amended) A bulk acoustic wave filter, comprising: . . . . each of said plurality of bulk acoustic wave resonators [having]comprising: a substrate, [at least one first] a first electrode disposed over said substrate, [one] a piezoelectric layer disposed over said first electrode; and [one] a second electrode disposed over said piezoelectric layer; . . . . 12. (Amended) A bulk acoustic wave filter, comprising: . . . . each of said plurality of bulk acoustic wave resonators [having]comprising: a substrate, [at least one]a first electrode, [one]a piezo-electric layer and [one]a second electrode; . . . . P.O. 1st Resp. 6-7. New Claim 25 included language identical to that of claim 12 as amended above. Id. at 9. Requester responded by arguing that claims 1 and 12 thus amended and new claim 25 resulted in an impermissible broadening because “comprising” is broader than “having” and because “a” is broader than “one”: “[T]he indefinite articles „a‟ or „an,‟ when used in a patent claim, mean „one or more‟ in claims containing open-ended transitional phrases such as „comprising.‟” (Crystal Semiconductor v. Tritech Microelectronics, 246 F. 3d 1336, 1347 (Fed. Cir. 2001)). The Avago Response [P. O. 1st Resp.] admits that the article “a” means “one or more.” (Avago Response, pg. 11). Further, “the transition „comprising‟ creates a presumption that the recited elements are only a part of the device, that the claim does not exclude additional, unrecited elements.” (Crystal Semiconductor at 1348). “In contrast, the term „having‟ does not convey the open-ended meaning as Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 20 strongly as „comprising.‟ „Having,‟ for instance, does not create a presumption that the body of the claim is open.” (Id.). Claim 1 of the ‟340 Patent recites a bulk acoustic wave filter comprising “a plurality of bulk acoustic wave resonators,” “each of said plurality of bulk acoustic wave resonators having . . . one piezoelectric layer” and “one second electrode.” Thus, claim 1 of the ‟340 Patent presumably means that each of the resonators of the plurality has exactly one piezoelectric layer and exactly one second electrode. In contrast, amended claim 1 recites a bulk acoustic wave filter comprising “a plurality of bulk acoustic wave resonators,” “each of said plurality of bulk acoustic wave resonators comprising . . . a piezoelectric layer . . . and a second electrode.” Thus, amended claim 1 recites that each of the resonators can include one or more piezoelectric layers and one or more second electrodes. Req. 1st Comments 13-14. The Examiner agreed with this reasoning and rejected the claims under 35 U.S.C. § 305(a). ACP 13-15. In response to this rejection, Patent Owner effectively revised the first amendment of original claims 1 and 12 to avoid replacing “one” with “a” in the second paragraphs, while retaining the other changes to the claims. See P.O. 2d Resp. 6-7, claims 1 and 12 (reciting the above-discussed claim phrase “[one] [a] one”). Patent Owner also proposed to modify new claim 25 so as to employ the same language as claim 12. Id. at 9. The result of these amendments, which the Examiner approved for entry, is that the second paragraphs of claims 1 and 12 (in the correct format) read as shown above and reproduced below for convenience: 1. (Twice Amended) A bulk acoustic wave filter, comprising: . . . . Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 21 each of said plurality of bulk acoustic wave resonators [having]comprising: a substrate, [at least one first] a first electrode disposed over said substrate, one piezoelectric layer disposed over said first electrode; and one second electrode disposed over said piezoelectric layer; . . . . 12. (Twice Amended) A bulk acoustic wave filter, comprising: . . . . each of said plurality of bulk acoustic wave resonators [having]comprising: a substrate, [at least one]a first electrode, one piezo-electric layer and one second electrode; . . . . P.O. 2d Resp. 6-7. Also new claim 25 now employs language identical to the above-quoted language in claim 12. Patent Owner asserted as follows that these amendments are sufficient to overcome the § 305(a) rejection: iv. Issue presented under 35 U.S.C. §305 While the Patent Owner does not necessarily agree that the amendments to claims 1 and 12 deleting the featured “one” piezoelectric layer and “one” second electrode in favor of the article “a” necessarily broadens the scope of claims 1 and 12, in the interest of expediting prosecution, claims 1 and 12 have been amended to return these features to their form as issued in the [‟]340 Patent. Similarly, new claim 25 has been amended to parallel twice amended claims 1 and 12 as to these features. P.O. 2d Resp. 17. Requester responded by arguing that the claims are still enlarged by changing “having” to “comprising” in claims 1 and 12 and using “comprising” in claim 25, citing Crystal Semiconductor. Req. 2d Comments 13. According to Requester: [I]ssued claim 1 of the ‟340 Patent presumably means that each of the resonators of the plurality has exactly one piezoelectric Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 22 layer and exactly one second electrode. . . . [T]he scope of amended claim 1 is presumed to encompass filters with other piezoelectric layers besides the recited “one piezoelectric layer” and other electrodes besides the “one second electrode.” Id. at 14. The Examiner agreed with this reasoning and thus rejected claims 1-12 and 15-34 under 35 U.S.C. § 305(a). RAN 12. The Examiner‟s Answer faulted Patent Owner‟s Brief for failing to address the § 305(a) rejection: (6.1) GROUNDS OF REJECTION NOT ON REVIEW The following grounds of rejection have not been withdrawn by the examiner, and they have not been presented by an appellant for review. Claims 1-12, and 15-34 rejected under 35 USC § 305 for enlarging the scope of the claims as set forth in the RAN was not addressed in the Appeal Brief and should be added to the grounds of rejection listed in the brief (Appeal Brief, item # 6 pages 5-6). Answer 6-7. Patent Owner responded by arguing that the merits of the rejection in fact have been addressed: The Patent Owner has considered the adopted rejection of claims 1-12 and 15-34 under 35 U.S.C. § 305 for allegedly enlarging the scope of the claims under reexamination. While the Patent Owner does not concede the propriety of these rejections, the Patent Owner nonetheless respectfully submits that the amendments to claims 1 and 12 presented in the Response by Patent Owner in Inter Partes Reexamination to the ACP filed on February 21, 2012 [i.e., P.O. 2d Resp.] render these rejections moot. As such, these rejections were not presented in the Grounds of Rejection to be Reviewed on Appeal in the Appeal Brief. (Kindly refer to: pages 6 and 7 of the Response to the ACP, which includes amendments to claims 1 and 12; and to Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 23 item iv. “Issue presented under 35 U.S.C. §305” at page 17 of the Response by Patent Owner in Inter Partes Reexamination to the ACP.) Reb. Br. 35. This argument is unpersuasive because neither the Rebuttal Brief nor Patent Owner‟s Second Response addresses the Examiner‟s stated rationale for the rejection, which is that the claims have been broadened by changing “having” to “comprising.” We therefore sustain the rejection under 35 U.S.C. 305(a) with respect to claims 1-12 and 15-34, which are all of the claims on appeal. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to present arguments on a particular issue — or, more broadly, on a particular rejection — the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.”). See also Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a ground of rejection to the Board, [37 C.F.R.] section 1.192(c)(7) imposes no burden on the Board to consider the merits of that ground of rejection on the basis of a representative claim. Rather, the Board may treat any argument with respect to that ground of rejection as waived. In the event of such a waiver, the PTO may affirm the rejection of the group of claims that the examiner rejected on that ground without considering the merits of those rejections.”). Although our decision to sustain this rejection is dispositive of the appeal, we address the remaining rejections in the interest of completeness. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 24 B. The Rejection Under 35 U.S.C. § 112, ¶ 1(Description Requirement) (Claims 1-12 and 15-34) (RAN 10) And Corresponding Objection to Specification (Id. at 9) The Examiner (RAN 10) agrees with Requester (Req. 2d Comments 5- 11) that the ‟340 patent fails to provide written description support for reciting that the “plurality of bulk acoustic wave resonators” are “each configured to operate in a thickness extensional mode.” Claims 1, 12, and 25 (emphasis added). As correctly noted by Requester, “the ‟340 Patent specification fails to expressly disclose any operational modes of its resonators.” Req. 2d Comments 9. We begin our analysis of the support issue by addressing the scope of the claim language in question. See In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1319 (Fed. Cir. 2011) (“[C]laim construction is inherent in any written description analysis.”). We conclude that the claim language “configured to operate in a thickness extensional mode” is entitled to weight to the extent it implies the presence (or absence) of particular structure. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (“A patent applicant is free to recite features of an apparatus either structurally or functionally.”); In re Venezia, 530 F.2d 956, 959 (CCPA 1976) (recitation of “a pair of sleeves . . . each sleeve of said pair adapted to be fitted over the insulating jacket of one of said cables” imparts a structural limitation to the sleeve rather than being a mere direction of activities to take place in the future). The claim language in question requires each of the recited plurality of bulk acoustic wave resonators to have a structure that permits it to be operated in a thickness extensional mode. Thus, we agree with Patent Owner Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 25 that the question raised by the rejection is whether the resonators of the ‟340 patent “support” operation in a thickness extensional mode. See Br. 12-13 (“[O]ne of ordinary skill in the art at the time of the invention of the [‟]340 Patent would readily understand that the structure of a BAW resonator desirably and necessarily must support a TE [thickness extensional] mode.”). The claim language therefore does not require actual operation in that mode, as suggested by Requester. See, e.g., Req. 2d Comments 10 (“[P]roper written description support would . . . require disclosure that each resonator of a plurality [of resonators] operates in the recited mode.” Req. 2d Comments 10. As correctly noted by Requester: To establish inherency, the extrinsic evidence must make clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill. Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient. Req. 2d Comments 8 (quoting In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (quotations and citations omitted) (emphasis added)). Patent Owner, as proof that the bulk acoustic wave resonators described in the ‟340 patent inherently (i.e., necessarily) are operable in a thickness extension mode, relies on the Elbrecht Declaration and Larson. Br. 7-9. Dr. Elbrecht testified in relevant part as follows: The piezoelectric layer of the [‟]340 patent is disposed between first and second electrodes and provides a c-axis orientation in the piezoelectric layer in a direction perpendicular to the electrodes (e.g., in the z-direction of Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 26 Fig. 10 provided with the [First] Response by Patent Owner in Inter Partes Reexamination Request, filed concurrently). In BAW resonators of the [‟]340 patent, the vibration occurs by expansion and contraction of the piezoelectric layer along the direction of its thickness (i.e., along the c-axis), and the wave vector is parallel to the direction of the vibration. The operational mode of the BAW resonators comprising a piezoelectric layer disposed over a substrate according to the [’]340 patent is a thickness extensional mode. Elbrecht Decl. para. 15, 3d subpara. (emphasis altered). Requester criticizes this testimony as reflecting “only [Dr. Elbrecht‟s] personal opinion and his subjective personal belief as to what is disclosed, and both are irrelevant to determining whether a patent application satisfied the written description requirement at the time of filing.” Req. 2d Comments 8-9. We are unpersuaded by this argument because it is contrary to the testimony of Requester‟s own expert witness, Dr. Wright, who testified that “Bradley, Rittenhouse, and AAPA all disclose filter networks including thin-film bulk acoustic wave (BAW) resonators operating in thickness extensional mode.” Wright Decl. para. 27 (emphasis added). Also, Dr. Wright, who states (at para. 14) that he reviewed the Elbrecht Declaration, does not question Dr. Elbrecht‟s above-quoted description of the BAW resonators of the ‟340 patent as operating in a thickness extension mode. Although it is therefore not necessary to address Patent Owner‟s alternative reliance on Larson for a teaching of inherency, we do so in the interest of completeness and also because Larson is relied on in Patent Owner‟s discussion (Br. 22) of the rejection based on Bradley. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 27 Larson‟s invention relates to acoustic resonators that may be used as filters for electronic circuits. Larson 1:5-7. Figure 1 of Larson is reproduced below. Figure 1 is a cross-section of an FBAR (Thin Film Bulk Acoustic Resonator). Id. at 1:45-46; 2:42. FBAR 20 includes top and bottom and electrodes 21 and 23 that sandwich a portion of a sheet of piezoelectric (PZ) material 22. Id. at 2:66-3:1. PZ sheet 22 is suspended over a cavity to provide an air/electrode interface on the bottom of the FBAR. Id. at 3:1-3. Larson describes the FBAR as capable of operation in either of two modes: These devices are designed to use bulk compression or shear acoustic waves propagating in a direction parallel to the z-axis in the thin film PZ material as the desired resonator mode. When an electric field is created between the two electrodes via an impressed voltage, the PZ material converts some of the electrical energy into mechanical energy in the form of sound waves. The sound waves propagate in the same direction as the electric field as shown at 24 and reflect off the electrode/air interface. Id. at 3:12-24 (emphasis added). Patent Owner, without contradiction by Requester or the Examiner, equates the claimed thickness extension mode to Larson‟s compression mode by referring to “thickness-extensional (TE) modes Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 28 (also known as compression).” Br. 8. Patent Owner then cites the structural similarities between the resonators described in the ‟340 patent and Larson‟s resonators to show that the resonators of the ‟340 patent are inherently capable of operation in the same modes as Larson‟s resonators: The structure of the BAW resonator disclosed in Fig. 1 of Larson, et al. is entirely consistent with the BAW resonators described in the [‟]340 Patent. As such, modes supported by the structure of Larson, et al. would also be supported by BAW resonators described in the filed application implicitly, and therefore no new matter is presented. Id. Requester does not deny that Larson demonstrates the inherent capability of the resonators of the ‟340 patent to operate in either one of the modes described in Larson. Rather, Requester argues: “[A]s admitted by Avago and disclosed by Larson and Ella[18], a configuration of the resonators to operate in thickness extensional mode is not „necessarily present‟ in the disclosure of the ‟340 Patent, because there is more than one mode in which the resonators could operate.” Req. 2d Comments 10.19 This argument is unpersuasive because it incorrectly assumes that the claims require actual operation in a thickness extension mode. As explained above, the claim language in question instead requires that the plurality of resonators each have 18 Ella, U.S. Patent 5,910,756, issued June 8, 1999. Req. 1st Comments Ex. II-6. 19 As noted by Requester (Req. 2d Comments 16), Ella describes its BAW devices as operable in “longitudinal mode” or “shear mode.” Ella, col. 29, (Continued on next page.) Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 29 a structure that permits operation in the recited mode. Requester has not identified any resonator structure that is allegedly required to permit operation in a thickness extension mode but not present in the resonators of the ‟340 patent. Requester‟s second argument, reproduced below, likewise is based on the incorrect assumption that the claims require actual operation in the recited mode: [E]ven if the ‟340 Patent actually disclosed thickness extensional mode operation, as Avago contends, written description support is still lacking, because nowhere does the ‟340 Patent state that each of a plurality of resonators must operate in thickness extensional mode. The prior art (e.g., Larson and Ella) teaches that resonators can operate in modes other than thickness extensional mode. Id. Because the resonators of the ‟340 patent have not been demonstrated to be incapable of operation in a thickness extensional mode, we do not sustain the Examiner‟s rejection of any of the claims under the written description requirement of 35 U.S.C. § 112, first paragraph. For the same reason, we do not sustain the Examiner‟s objection, on the ground of new matter, to the amendment of the Specification to recite operation in a thickness extensional mode. C. The Rejection Under 35 U.S.C. § 112, ¶ 1 (Best Mode Requirement) (Claims 1-12 and 15-34) (RAN 11) lines 16-22. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 30 The Examiner (RAN 11) agrees with Requester (Req. 2d Comments 11) that the failure of the ‟340 patent to describe operation in a thickness extension mode violates the best mode requirement of 35 U.S.C. § 112, first paragraph. As correctly pointed out by Patent Owner: “BAW resonators such as those disclosed in the [‟]340 Patent are known to support TE modes. The reference to Larson, et al., further supports this position.” Br. 13. Furthermore, the record contains no evidence of deliberate concealment of this mode of operation. See High Concrete Structures, Inc. v. New Enterprise Stone And Lime Co., Inc., 377 F.3d 1379, 1384 (Fed. Cir. 2004) (“Known ways of performing a known operation cannot be deemed intentionally concealed absent evidence of intent to deliberately withhold that information.”). See also W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1556-57 (Fed. Cir. 1983) (no best mode violation for failure to disclose “mode [that] would have been employed by those of ordinary skill in the art at the time the application was filed.”). We therefore do not sustain the rejection of any claim for failure to comply with the best mode requirement of 35 U.S.C. 112, first paragraph. D. The § 103(a) Rejection Based on AAPA in view of Ishii (Claims 1-12 and 15-34) (RAN 15) Figure 4 of the ‟340 patent, which is part of AAPA and reproduced above, is reproduced again below for convenience. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 31 As noted above, the four, square bulk acoustic wave resonators have identical effective resonator surfaces, with the result that the spurious modes of the resonators occur at the same frequency points. AAPA 6:2-5. Requester AAPA does not take issue with Patent Owner‟s following statement: [A] filter according to the teachings of AAPA would comprise a plurality of this one particular resonator, each having the same surface shape and contents. As such, there is no disclosure of a filter comprising a plurality of bulk acoustic resonators each having a different surface shape and/or different surface contents.” Br. 17. This brings us to Ishii. Ishii‟s invention relates to an ultra-thin plate cascade connected multimode filter structure. Ishii at 0001. Dr. Elbrecht testified, without contradiction by Requester or Dr. Wright, that Ishii‟s operational mode is not a thickness extensional mode: The ultra-thin plate crystal resonator devices of Ishii are configured to operate in a shear mode, with vibrational components in the x-y plane (i.e., the plane of the areal Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 32 dimensions of the electrodes 5, 5‟). Resonators that operate in a shear mode have very different characteristics from the bulk acoustic wave resonators of the [‟]340 patent. The piezoelectric layer of the [‟]340 patent is disposed between first and second electrodes, and provides a c-axis orientation in the piezoelectric layer in a direction perpendicular to the electrodes (e.g., in the z-direction of Fig. 10 provided with the Response by Patent Owner in Inter Partes Reexamination Request, filed concurrently). . . . The operational mode of the BAW resonators comprising a piezoelectric layer disposed over a substrate according to the [‟]340 patent is a thickness extension mode. Elbrecht Decl. para. 15, 2d and 3d subparas. (italics altered). Figures 5(a) and 5(b) of Ishii are reproduced below. Figures 5(a) and 5(b) depict a conventional ultra-thin plate cascade connected multimode filter structure, including two filter elements connected in cascade. Id. at 0002. Each of the filter elements (i.e., resonators) includes: a Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 33 piezoelectric blank 1 having a thin vibrator part 2 and a surrounding part 3; a “set” (i.e., pair) of split electrodes 5 and associated leads 6 located on the upper surface of blank 1; and a full surface electrode 4 on the lower surface thereof. Id. at 0002, 0010. Figures 5(c) and 5(d) are reproduced below. Figure 5(c) shows the attenuation characteristics of a single filter element, and Figure 5(d) shows the attenuation characteristics of a filter formed of two such filter elements. Id. at 0002, 0005. Ishii explains: [B]ecause this [filter] uses filter elements having an electrode configuration that is exactly the same as was conventional, as shown in FIG. 5 (a), the spurious characteristics shown in (c) of the same figure are also exactly the same, and thus the spurious characteristics resulting from cascade connection occur in the same positions as in the case of one filter element, as shown in (d) of the same figure, and cannot be suppressed which was a problem, as has been described above. Id. at 0005. Thus, in Figures 5(c) and 5(d), the spurious outputs correspond to the spikes at frequencies f2 and f3. Ishii‟s solution is to form the electrodes of the first set of split electrodes with a rectangular shape different from the rectangular shape of the Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 34 electrodes of the second set of split electrodes. Figures 1(a)-1(c) are reproduced below. Figures 1(a)-(c) show an embodiment of Ishii‟s invention. Id. at 0010. The rectangular shape (i.e., H/L ratio) of each of split electrodes 5 in the first filter element is selected to be different from the rectangular shape of each of split electrodes 5‟ in the second filter element. Id. at 0006. Id. Electrode pairs 5 and 5‟ thus have “different aspect ratios,” as required by the claims. Figures 2(a)-(c) are reproduced below. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 35 Figures 2(a)-(c) show the attenuation characteristics for the first and second filter elements and the overall filter, respectively. Id. at 0010. As shown in Figures 2(a) and 1(b), the “the positions at which spurious [output] is generated differs according to the shape of the split electrode.” Id. at 0006 (brackets in original). Thus, when the two filter elements are cascade- connected, “the level [of spurious outputs] can be reduced as a result of these canceling each other out, as shown in (c) of the same figure.” Id. Ishii further explains: In practice, in order to have the terminal impedances of each multimode filter element match, the H/L ratio should be varied for each element so that the surface areas of the split electrodes, Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 36 which determine these values, match. However, as is commonly known, if the H/L ratio alone is simply changed, the degree of vibratory coupling between the split electrodes changes, changing the passband width. Accordingly, cascade connection should be performed with multimode filter elements constructed so as to have identical passband widths, by selecting an appropriate width [of the space] between the electrodes G. Id. (brackets in original). Figures 3 and 4 of Ishii are reproduced below. Figure 3 is a plan view of a second embodiment of Ishii‟s invention, which differs from the first embodiment in the shape of leads 6 and 7. Id. at 0007. Figure 4 is a plan view of an embodiment in which both sets 5 and 5‟of split electrodes are located on the same piezoelectric blank 1. Id. at 0008. The Examiner concluded, correctly in our view: [O]ne of ordinary skill in the art would combine the teachings of Ishii, which relate to reducing spurious mode outputs by combining resonators having different spurious modes due to their aspect ratios, with the BAW filters disclosed by AAPA, in order to predictably produce reduced spurious output in the resulting filter. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 37 RAN 53. Patent Owner argues: [B]ecause Ishii relates to thin plate crystal resonators, having operational and spurious modes that are entirely different than operational and spurious modes of the bulk acoustic wave resonators of claims 1 and 12, one of ordinary skill in the art would not have turned to Ishii to remedy the ill-effects of spurious modes in bulk acoustic wave resonator filters comprising a plurality of bulk acoustic wave resonators configured to operate in thickness extensional mode. Br. 18. As support, Patent Owner (id.) cites the Elbrecht Declaration, which reads in relevant part as follows: As depicted in Figs. 2 and 5 of Ishii, ultra-thin plate crystal resonators are affected by spurious modes, which are at a significantly higher frequency than the fundamental resonance, f0, of the ultra-thin plate crystal resonators. Notably, in the description of the prior art of Ishii, the spurious modes are “generated in the high-pass side of the filter passband.” (See paragraph [0002] of Ishii). These high frequency spurious modes appear to be a unique feature of “thin plate crystal resonator” devices as investigated by Ishii, and most notably are not present in the bulk acoustic resonators of the filters of the [‟]340 patent. By contrast to the unique spurious modes of the “thin plate crystal resonator” devices of Ishii, the spurious modes described in the [‟]340 patent may be caused by lateral standing waves in the bulk acoustic resonators of the filters of the [‟]340 patent and primarily are manifest in the passband of the filter of the [‟]340 patent. (See Fig. 7 of the [‟]340 patent, and by comparison Fig. 8 which shows the passband of a filter having bulk acoustic resonators in accordance with the teachings of the [‟]340 patent). Therefore, the spurious modes of Ishii are physically different in both source and characteristics than the spurious modes of the [‟]340 patent. As such, one of ordinary skill in the art would not have turned to the mitigation of the high frequency spurious modes of the thin plate crystal resonators of Ishii in an attempt to Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 38 mitigate the spurious modes in the bulk acoustic wave resonators of the „340 patent. Elbrecht Decl. para. 15, last subpara. This testimony is unpersuasive because it takes an unduly narrow view of Ishii‟s invention. As explained by Dr. Wright, “Ishii . . . teach[es] the suppression of spurious mode output of filter networks by adjusting resonator parameters to be different so that spurious mode response frequencies do not coincide in the combined filter response.” Wright Decl. para. 26. Although Ishii does not describe this design principle as applicable to resonators that are configured to operate in a thickness extensional mode, a person skilled in the art would have understood this design principle to be applicable to resonators of this type that are known to have spurious mode frequencies, including the AAPA resonators. Furthermore, because Ishii implements this design principle by forming a filter with resonators having different aspect ratios and thus different spurious mode frequencies, it would have been obvious to use the same technique to make a filter with the AAPA resonators. Combining the teachings of AAPA and Ishii in this manner is consistent with the principles set forth in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007). One such principle is that “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” KSR, 550 U.S. at 417. Another such principle is stated in KSR as follows: When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 39 solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under §103. Id. at 421. As already noted, Patent Owner does not separately argue the obviousness of using different aspect ratios that fall within the ranges recited in claims 1, 12, and 25. For the above reasons, we sustain the rejection of claims 1-12 and 15- 34 for obviousness over AAPA in view of Ishii. D. The Rejection Based on AAPA in view of Ishii and Hayashi (Claims 1-12 and 15-34) (RAN 19) In this ground of rejection, the Examiner relies on Hayashi for a further suggestion of forming a filter with resonators having different aspect ratios falling within the ranges recited in claims 1, 12, and 25. RAN 20. Thus, Hayashi in this respect is cumulative to Ishii. Figure 1 of Hayashi is reproduced below. Figure 1 shows a ladder type piezoelectric filter including series resonators a1- an and parallel resonators b1-bn. Hayashi 0002. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 40 Figure 2 is reproduced below. Figure 2 shows a rectangular series resonator (a1) having a “short side direction” ax1 and a “long side direction” ay1. Id. at 0013. Hayashi explains that in the past, series resonators and parallel resonators employing the expansion vibration mode were used for ladder filters (id. at 0003) but that it has been difficult to miniaturize such filters because “with resonators employing the expansion vibration mode, the frequency is determined by the length in the diagonal direction.” Id. at 0004. Attempts at miniaturization were made by using resonators employing a lengthwise vibration mode (id.) but “there was a problem in terms of high spurious levels caused by vibration extending in the short side direction.” Id. at 0006. In Hayashi‟s filters, which are operated in the lengthwise vibration mode, spurious levels are reduced by causing the lengths of the series resonators in the short side direction to be different and/or causing the lengths of the parallel resonators in the short side direction to be different. Id. at 0011. The lengths of the long sides of the series resonators are all the same. See id. at 0014 (“ay1 =ay2 . . . =ayn”). As a result, all of the series resonators have different aspect ratios. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 41 Regarding this ground of rejection, Patent Owner (Br. 19-21) repeats the above-discussed, unpersuasive argument against combining the teachings of AAPA and Ishii and offers a similar reason against the Examiner‟s additional reliance on Hayashi. Specifically, regarding Hayashi, Patent Owner argues: [B]ecause piezoelectric ceramic resonators of Hayashi are configured to operate in lengthwise vibrational mode and not in thickness extensional mode, the design considerations for piezoelectric ceramic resonators of Hayashi are different from and not applicable to those of a bulk acoustic wave resonator as described in the „340 patent. As such, one of ordinary skill in the art would not have been prompted to turn to the teachings of Hayashi in an effort to mitigate spurious modes in bulk acoustic resonators configured to operate in thickness extensional modes. Br. 20. This argument is unpersuasive for reasons like those given above in response to Patent Owner‟s similar argument regarding Ishii. That is, the argument is based on an unduly narrow view of the reference teachings. We therefore sustain the rejection of claims 1-12 and 15-34 for obviousness based on AAPA in view of Ishii and Hayashi. E. The § 103(a) Rejection Based on Bradley (Claims 1, 2, 5-7, 10-12, 15, 18-20, 23-25, 28-30, 33, and 34) (RAN 23) Bradley‟s invention relates to electronic components for use in high- power radio-frequency circuits (Bradley 1:5-7) and more particularly relates to duplexers for use in cellular or cordless telephones. Id. at 1:12-17. Bradley‟s Figure 1 is reproduced below. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 42 Figure 1 is a block diagram showing the front-end circuit 10 of a conventional cellular telephone, personal communication system (PCS) device, or other transmit/receive apparatus. Id. at 4:17-20. A duplexer 20 includes band-pass filters 30 and 32 and a 90° phase shifter 34. Id. at 1:47-52. Bradley explains that surface acoustic wave (SAW) filters have been used as duplexers in cellular telephones and PCS devices but that the roll-off of these SAW filters is not sufficiently steep for CDMA20 applications. Id. at 2:50-58. Bradley‟s Figure 3A is reproduced below. 20 Code Division Multiple Access. Bradley 2:9. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 43 Figure 3A is a cross-sectional view of a thin-film bulk acoustic resonator (FBAR). Id. at 4:25-26. The piezoelectric layer 52 and the electrodes 58 and 60 form a piezoelectric resonator stack 62 that expands and contracts in the direction indicated by the arrow 64 in response to the magnitude and direction of a voltage applied between the electrodes. Id. at 4:57-61. Dr. Wright, without contradiction by Patent Owner or Dr. Elbrecht, describes Bradley as “operating in a thickness extensional mode.” See Wright Decl. para. 27 (“Bradley, Rittenhouse, and AAPA all disclose filter networks including thin- film bulk acoustic wave (BAW) resonators operating in thickness extensional mode.”). Bradley‟s band-pass filters include ladder circuits using film bulk acoustic resonators (FBARs). Id. at 3:14-25. Bradley‟s Figure 4 is reproduced below. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 44 Figure 4 is a schematic block diagram of a first working embodiment 100 of Bradley‟s duplexer, which includes a transmit FBAR array 102 and receive FBAR array 104. Id. at 5:61-64. FBAR transmit array 102 is composed of series FBARs 101, 103, and 105 and shunt FBARs 107 and 109 connected to form a 2½ stage ladder circuit. Id. at 6:28-36. Transmit FBAR array 104 is a 3½ stage ladder circuit. Id. at 6:64-66. Bradley‟s Figures 5A and 5B are reproduced below. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 45 Figures 5A and 5B illustrate an exemplary FBAR array 70 composed of six FBARs 72-77 interconnected to form a ladder circuit, as required for Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 46 implementation of FBAR arrays 102 and 104. Id. at 8:21-24. “An FBAR exists where the electrodes on opposite surfaces of the piezoelectric layer overlap. For example, the FBAR 72 is defined where the electrodes 83 and 88 overlap.” Id. at 8:32-34. The overlap area determines the impedance of the FBAR. See Bradley 13:23-26 (“In an FBAR-based duplexer according to the invention, the area of the FBARs constituting the respective FBAR arrays determine the characteristic impedance of the duplexer.”). Requester, as support for the proposed rejection based on anticipation by Bradley (not adopted by the Examiner), provided the following annotated version of Figure 5A to show the electrode overlap areas A and B of FBARs 76 and 72, respectively: Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 47 Req. 2d Comments 17 (reproduced at RAN 28 in the discussion of the rejection based on Bradley in view of Ishii). Patent Owner does not deny that the FBAR array depicted in Bradley‟s Figure 5A includes two FBARS (i.e., A and B in annotated Fig. 5A) having different aspect ratios. Nor does Patent Owner deny that the “plurality of bulk acoustic wave resonators” recited in claims 1, 12, and 25 can be read on FBARs A and B, as argued by Requester. See Req. 2d Comments 28 (quoted at RAN 13) (“Bradley reasonably teaches one of ordinary skill in the art a BAW filter having a plurality of two thickness extensional mode resonators . . . .”) (emphasis added). We note that Requester in arguing the proposed § 102 rejection (not adopted by the Examiner) asserted that FBARs A and B in Bradley‟s Figure 5A have aspect ratios of 1:1.4 and 1:3.5, respectively, which fall within the range of “between 1:1 and 1:1.5” recited in claim 1, with the result that Bradley anticipates this claim. Req. 2d Comments 16-18. The Examiner disagrees, finding that Bradley does not describe Figure 5A as drawn to scale. RAN 13-14. As support, the Examiner cites M.P.E.P. § 2125 and Hockerson-Halberstadt, Inc. v. Avia Group Int'1, 222 F.3d 951, 956, (Fed. Cir. 2000) (“[I]t is well established that patent drawings do not define the precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue.”). Id. at 14. The Examiner instead concludes (id. at 24) that making Bradley‟s FBAR array with FBARs having different aspect ratios falling within the Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 48 ranges recited in claims 1, 12, and 25 would have been obvious from the following passage in Bradley, which cites the ‟082 application that issued as the above-discussed Larson patent: Id. at 23 (quoting Bradley column 8, lines 42-53) (underlining by Examiner). Specifically, the Examiner stated: [I]t would have obvious for one of ordinary skill in the art to have made effective resonator surfaces having aspect ratios between 1:1 and 1:5 and between 1:1.5 to 1:3 as recited in independent claims 1, 12 and 25 respectively for reducing the incidence of spurious transverse resonances that would otherwise degrade the frequency response of the FBARs. Id. at 24. Patent Owner responded with the following argument about Larson and Bradley: Fig[s]. 4 and 5 of Larson, et al. illustrate the manner in which spurious modes are suppressed within individual resonators. Neither Bradley, et al. nor Larson, et al. recognizes or addresses the interaction of spurious modes in a filter comprising a plurality of bulk acoustic resonators, but rather the mitigation of spurious modes in a single resonator. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 49 Br. 22. We address Larson‟s Figures 4 and 5 after first considering Figures 3A and 3B, which are reproduced below. Figures 3A and 3B are top and side views of an FBAR acoustical cavity in a typical prior art FBAR, in which the top and bottom electrodes form a rectangular overlap region. Larson 2:45-49. For any point on the periphery of cavity 50, a transverse mode will correspond to a sound path that leaves that point and then returns to the same point after bouncing off one or more walls of the cavity. Id. at 4:1-5. This transverse mode corresponds to a harmonic series of absorption bands in the absorption spectrum of the FBAR. Id. at 4:7- 9. Larson‟s Figures 4 and 5 are reproduced below. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 50 Figure 4 is a top view of an FBAR acoustical cavity according to Larson‟s invention in which the electrode overlap region forms an irregular figure. Id. at 2:50-52. Figure 5 is a top view of another embodiment of an FBAR acoustical cavity according to Larson‟s invention. Id. at 2:54-55. Although Patent Owner‟s above-quoted statement that “[n]either Bradley, et al. nor Larson, et al. recognizes or addresses the interaction of spurious modes in a filter comprising a plurality of bulk acoustic resonators” (Br. 22) is correct, the Examiner correctly found that the claims do not require recognizing or addressing such interaction. See RAN 62 (“[T]he claims do not recite this limitation of interaction of spurious mode modes.”). Nor is a recognition of the interaction of spurious modes necessary to the rejection. Bradley‟s Figure 5A shows an FBAR array including a plurality of two FBARs 72 and 76 (B and A in annotated Fig. 5A) having different aspect ratios, as required by claims 1, 12, and 25. These two FBARs also satisfy the first alternative of the requirement of claims 1, 12, and 25 that the recited plurality of FBARs “hav[e] effective resonator surfaces with different surface shapes and/or different surface contents.” Also, the second alternative Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 51 of this requirement is satisfied by Bradley‟s above-quoted statement that “the FBARs constituting the FBAR array 70 are typically of different areas.” Bradley 8:52-53. Regarding the further requirement of claim 25 that the plurality of bulk acoustic wave resonators each “hav[e] different spurious mode frequencies,” this limitation is inherently satisfied by FBSRs 72 and 76 due to their having different aspect ratios. Evidence of such inherency is provided by the ‟340 patent, which states: “Since at least two of the bulk acoustic wave resonators have effective resonator surfaces that differ in the surface shape and/or surface content, this configuration of the bulk acoustic wave resonators allows spurious modes to be suppressed optimally, without influencing the impedance level of the filter in the process.” ‟340 patent 3:15- 20. It is not necessary to the rejection to show that a person of ordinary skill in the art would have recognized this inherent characteristic in Bradley prior to the critical date of the ‟340 patent. See Schering Corp. v. Geneva Pharm. Inc., 339 F.3d 1373, 1377 (Fed. Cir. 2003) (“[R]ecognition by a person of ordinary skill in the art before the critical date of the ′716 patent is not required to show anticipation by inherency.”). For the above reasons, we sustain the rejection of claims 1, 2, 5-7, 10- 12, 15, 18-20, 23- 25, 28-30, 33, and 34 under 35 U.S.C. § 103(a) based on Bradley. F. The Rejection Based on Bradley in view of Ishii (Claims 1, 2, 5-7, 9-12, 15, 18-20, 22-25, 28-30 and 32-34) (RAN 26) Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 52 The Examiner in this ground of rejection additionally relies on Ishii for a teaching of using different aspect ratios that fall within the claimed ranges. RAN 28. Patent Owner responds to this rejection merely by repeating (at 27) the above-discussed, unpersuasive argument that one of ordinary skill in the art would not have turned to Ishii to remedy the ill-effects of spurious modes in bulk acoustic wave resonator filters comprising a plurality of bulk acoustic wave resonators configured to operate in thickness extensional mode. We therefore sustain the rejection of claims 1, 2, 5-7, 9-12, 15, 18-20, 22-25, 28-30 and 32-34 based on Bradley in view of Ishii. G. The Rejection Based on Bradley in view of Ishii and Hayashi (Claims 1- 12 and 15-34) (RAN 30) Regarding the Examiner‟s additional reliance on Hayashi, Patent Owner (Br. 27) merely repeats the above-discussed, unpersuasive argument that one of ordinary skill in the art would not turn to the teachings of Hayashi in an effort to mitigate spurious modes in bulk acoustic resonators configured to operate in thickness extensional modes. We therefore sustain the rejection of claims 1-12 and 15-34 for obviousness based on Bradley in view of Ishii and Hayashi. H. The Rejection Based on Rittenhouse in view of Ishii (Claims 1, 2, 9-12, 15, 22-25, and 32-34) (RAN 34) Figure 1 of Rittenhouse is reproduced below. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 53 Figure 1 is a side view of a conventional thin film resonator (TFR). Rittenhouse 1:11-15. Dr. Wright‟s testimony that Rittenhouse operates in a thickness extensional mode (Wright Declaration para. 18) has not been challenged. Figure 2A of Rittenhouse is reproduced below. Figure 2A is a conventional electrical circuit model for the TFR of Figure 1. Id. at 1:52-53. Capacitance C0 represents the parallel plate capacitance (static capacitance) of the electrodes (e.g., electrodes 105 and 115 in Figure 1). Id. at 1:57-60. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 54 Rittenhouse explains that a standard approach to designing filters out of resonators is to arrange them in a ladder configuration in a series-shunt relationship. Id. at 2:16-18. Rittenhouse‟s invention differs from conventional concatenation methods, where capacitances in each TFR in respective series arms are equal to each other, and where capacitances in each TFR in respective shunt legs are equal to each other. Id. at 5:22-27. Rittenhouse‟s Figure 9, which is specifically relied upon in the rejection, is reproduced below. Figure 9 illustrates a TFR filter circuit in accordance with Rittenhouse‟s invention. Id. at 6:28-29. The parallel plate capacitance COX of each electrode is different, the capacitance values being varied by manipulating the surface areas of the top and/or bottom electrodes of the TFR components. Id. at 6:48-54. Thus, an acceptable bandpass response and filter bandwidth can be achieved simply by independently enlarging or reducing the surface area of the electrodes of one, several, or each of the TFR components that constitute Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 55 the TFR filter. Id. at 6:56-60. Patent Owner does not deny that the electrode surface areas correspond to the claimed “surface contents” of the resonators. As correctly noted by Patent Owner: [W]hile the parallel plate capacitance is varied through the selection of the surface area of the top and/or bottom electrode, there is no description of the aspect ratios of the effective resonator surfaces and especially no disclosure that the effective resonator surfaces of all of the plurality bulk acoustic wave resonators have different aspect ratios. Br. 29. However, we agree with the Examiner that it would have been obvious to implement Rittenhouse‟s electrodes, which have different areas, with different aspect ratios. RAN 57. As noted by the Examiner, Rittenhouse does not exclude the resonators from having different aspect ratios. Id. (citing Wright Decl. para. 19). Furthermore, Figures 1, 3, and 4 of Ishii, as noted above, show a filter including resonators with rectangular resonator electrodes (5, 5‟) having different aspect ratios. Although Ishii does not describe these rectangular electrodes as having different areas (as described by Rittenhouse), a person skilled in the art would have recognized that electrodes having different areas can be implemented as rectangular electrodes having different aspect ratios. This conclusion of obviousness is consistent with the above- noted “obvious to try” rationale discussed in KSR, 550 U.S. at 417, because Ishii shows that the known options for the shapes of electrodes in resonators include rectangular electrodes having different aspect ratios. We therefore agree with Requester that “one of ordinary skill in the art applying the teachings of Rittenhouse would design a filter having resonators with different aspect ratios, except for the special case where a designer specifically Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 56 designed a filter with all of the aspect ratios the same.” Req. 2d Comments 33,1st full para. The reference teachings as combined above do not rely on Ishii‟s teaching of using different aspect ratios to address spurious modes. As a result, we are not persuaded by Patent Owner‟s argument that “one of ordinary skill in the art would not have turned to Ishii to remedy the ill-effects of spurious modes in bulk acoustic wave resonator filters comprising a plurality of bulk acoustic wave resonators configured to operate in thickness extensional mode.” Br. 31. Regarding the further recitation in claim 25 that the “each resonator ha[s] different spurious mode frequencies,” this limitation is inherently satisfied by Rittenhouse‟s Figure 9 filter circuit when implemented as discussed above. Furthermore, Ishii‟s teaching of using different aspect ratios to address spurious modes provides an alternative basis for combining the reference teachings in the above manner. See RAN 58 (“[O]ne of ordinary skill in the art would seek to combine Ishii‟s differing resonator aspect ratios with Rittenhouse‟s resonators, to improve the spurious mode output of Rittenhouse‟s filters.”). Patent Owner‟s above-quoted argument that one of ordinary skill in the art would not have turned to Ishii to remedy the ill-effects of spurious modes in bulk acoustic wave resonator filters that operate in thickness extensional mode is unpersuasive for the reasons given in the above discussion of the Examiner‟s reliance on Ishii in other grounds of rejection. We therefore sustain the rejection of claims 1, 2, 9-12, 15, 22-25, and 32-34 under 35 U.S.C. § 103(a) based on Rittenhouse in view of Ishii. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 57 I. The Rejection Based on Rittenhouse in view of Ishii and AAPA (Claims 3, 4, 16, 17, 26, and 27) (RAN 37) Patent Owner (Br. 31-32) treats this rejection as standing or falling with the rejection based on Rittenhouse in view of Ishii, which we have sustained. The rejection of claims 3, 4, 16, 17, 26, and 27 based on Rittenhouse in view of Ishii and AAPA is accordingly sustained. J. The Rejection Based on Rittenhouse in view of Ishii, AAPA, and Hayashi (Claims 1-12 and 15-34) (RAN 38) Patent Owner responds (Br. 32-34) by repeating the unpersuasive arguments already addressed above. We therefore sustain the rejection of claims 1-12 and 15-34 based on Rittenhouse in view of Ishii, AAPA, and Hayashi. K. The Rejection Based on Hayashi in view of Ishii and AAPA (Claims 1-12 and 15-34) (RAN 42) Patent Owner responds (Br. 34-36) by repeating the unpersuasive arguments addressed above. The rejection of claims 1-12 and 15-34 based on Hayashi in view of Ishii and AAPA is sustained. L. The Rejection Based on Matsumoto (Claims 1, 12, 15, and 25) (RAN 47) Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 58 The Examiner (RAN 47) and Requester (Req. 2d Comment 36-37) agree that Matsumoto is available as a reference only if the ‟340 patent fails to provide written description support for the “thickness extensional mode” limitation in amended claims 1, 12, and 25. Because we have found that these claims have the necessary written description support, we do not sustain the § 103(a) rejection of claims 1, 12, 15, and 25 based on Matsumoto. III. DECISION A. Sustained Grounds of Rejection: Claims 1-12 and 15-34 under 35 U.S.C. § 305(a) for enlargement of their scope. Claims 1-4, 9-12, 15-17, 22-27, and 32-34 under 35 U.S.C. § 103(a) for obviousness over AAPA in view of Ishii. Claims 1-12 and 15-34 under 35 U.S.C. § 103(a) for obviousness over AAPA in view of Ishii and Hayashi. Claims 1, 2, 5-7, 10-12, 15, 18-20, 23-25, 28-30, 33, and 34 under 35 U.S.C. § 103(a) for obviousness over Bradley. Claims 1, 2, 5-7, 9-12, 15, 18-20, 22-25, 28-30, and 32-34 under 35 U.S.C. § 103(a) for obviousness over Bradley in view of Ishii. Claims 1-12 and 15-34 stand rejected under 35 U.S.C. § 103(a) for obviousness over Bradley in view of Ishii and Hayashi. Claims 1, 2, 9-12, 15, 22-25, and 32-34 under 35 U.S.C. § 103(a) for obviousness over Rittenhouse in view of Ishii. Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 59 Claims 3, 4, 16, 17, 26, and 27 under 35 U.S.C. § 103(a) for obviousness over Rittenhouse in view of Ishii and AAPA. Claims 1-12 and 15-34 under 35 U.S.C. § 103(a) for obviousness over Rittenhouse in view of Ishii, AAPA, and Hayashi. Claims 1-12 and 15-34 under 35 U.S.C. § 103(a) for obviousness over Hayashi in view of Ishii and AAPA. B. Grounds of Rejection Not Sustained: Claims 1-12 and 15-34 under 35 U.S.C. § 112, first paragraph, written description and best mode requirements. Claims 1, 12, 15, and 25 under 35 U.S.C. § 103(a) for obviousness over Matsumoto. C. Conclusion The Examiner‟s decision that claims 1-12 and 15-34 are unpatentable is affirmed. AFFIRMED Appeal 2013-009112 Reexamination Control 95/001,595 Patent 6,909,340 B2 60 alw For Patent Owner: Kathy Manke Avago Technologies Limited 4380 Ziegler Road Fort Collins, CO 80525 For Third Party Requester: Mark W. Wilson, Esq. Klarquist Sparkman, LLP One World Trade Center 121 S.W. Salmon Street, Suite 1600 Portland, OR 97204-2988 Copy with citationCopy as parenthetical citation