Ex Parte Harle et alDownload PDFPatent Trial and Appeal BoardFeb 27, 201511904203 (P.T.A.B. Feb. 27, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte VOLKER HARLE, CHRISTINE HOSS, ALFRED LELL, and UWE STRAUSS Appeal 2013-003062 Application 11/904,203 1 Technology Center 2800 ____________ Before BRADLEY R. GARRIS, CHARLES F. WARREN, and KIMBERLY J. McGRAW, Administrative Patent Judges. McGRAW, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the decision of the Primary Examiner finally rejecting claims 1–3, 5, 6, 9–17, 24, and 25. Br. 4, 7, 10. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify Osram Opto Semiconductors GmbH as the real party in interest. App. Br. 2. Appeal 2013-003062 Application 11/904,203 2 BACKGROUND Appellants’ invention is directed to optoelectronic components, such as a semiconductor laser device or an LED, and to methods of making such components. Br. A-1, A-4 (Claims App’x); Spec. ¶ 3. Claims 1 and 17 are the only independent claims on appeal and are reproduced below. 1. A method for producing an optoelectronic component, comprising providing a semiconductor layer sequence having at least one active region, wherein the at least one active region emits electromagnetic radiation during operation; and applying at least one layer on a first surface of the semiconductor layer sequence by an ion assisted application method, wherein material applied by the ion assisted application method is one of: ionized and accelerated in an electric field towards the semiconductor layer sequence and accelerated by at least one of an ionized gas and an ionized gas beam, the first surface comprises a radiation exit area, and applying the at least one layer on the first surface includes applying a plurality of layer pairs, each of said layer pairs including a first layer and a second layer. 17. An optoelectronic component, prepared by a process providing a semiconductor layer sequence having at least one active region, wherein the at least one active region emits electromagnetic radiation during operation; and applying at least one layer on a first surface of the semiconductor layer sequence by an ion assisted application method, wherein material applied by the ion assisted application method is one of: ionized and accelerated in an electric field towards the semiconductor layer sequence and Appeal 2013-003062 Application 11/904,203 3 accelerated by at least one of an ionized gas and an ionized gas beam, such that the at least one layer has a peak-to-peak roughness of less than approximately 4 nm, the first surface comprises a radiation exit area, and the applying the at least one layer on the first surface includes applying a plurality of layer pairs, each of said layer pairs including a first layer and a second layer. REJECTIONS R1. Claims 1–3, 5, 6, 9–13, and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ochiai (US 2007/0025231 A1, published Feb. 1, 2007) and Parriaux (US 6,680,799, issued Jan. 20, 2004). Ans. 4. R2. Claims 17 and 25 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ochiai and Murakami (US 6,441,963 B2, issued Aug. 27, 2002). Ans. 10. R3. Claims 14 and 24 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ochiai, Parriaux and Chakrabarti (US 5,802,091, issued Sept. 1, 1998) as applied to claims 1 and 12. Ans. 14. R4. Claim 15 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ochiai, Parriaux, and Den Baar (US 7,084,436 B2, issued Aug. 1, 2006) as applied to claim 2. Ans. 15. Appellants do not present separate arguments specifically directed to the dependent claims under rejection. Br. 4–10. Therefore, the dependent claims will stand or fall with their parent independent claims. 37 C.F.R.§ 41.37(c)(vii) (2011). Appeal 2013-003062 Application 11/904,203 4 ANALYSIS We have thoroughly reviewed each of Appellants’ arguments for patentability. However, we are in agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of § 103 in view of the applied prior art. Accordingly, we will sustain the above rejections for essentially those reasons expressed in the Answer, including the Response to Argument section with the following comments added for emphasis. Claim 1 Appellants argue the Examiner erred in rejecting independent claim 1 because the cited art does not teach or suggest “applying at least one layer on a first surface of the semiconductor layer sequence by an ion assisted application method, wherein material applied by the ion assisted application method is one of: ionized and accelerated in an electric field towards the semiconductor layer sequence and accelerated by at least one of an ionized gas and an ionized gas beam.” Br. 4–7. In particular, Appellants argue that the Examiner erred in combining the teaching of Parriaux with Ochiai because Parriaux is directed to an electrically isolating YAG crystal, not a semiconductor layer sequence as taught by Ochiai and required by the claims. Br. 4–7. This argument is not persuasive as it fails to address the full scope of the Examiner’s findings. The Examiner found that Ochiai teaches nearly all of the limitations of claim 1, but uses a different ion assisted application method than what is recited in claim 1. Ans. 6, citing Ochiai ¶ 88. However, the Examiner found that Parriaux satisfies this limitation as it teaches using ion plating, an ion Appeal 2013-003062 Application 11/904,203 5 assisted application method, which results in ionized material being accelerated in an electric field towards the material to be coated. Ans. 6 &18, citing Parriaux 9:60-66. 2 The Examiner further found that both Ochiai and Parriaux use ion assisted application methods to produce equivalent layer pair structures in laser devices. Ans. 18. The Examiner concluded that it would have been obvious to one of ordinary skill in the art to use the ion assisted/ion plating method of Parriaux in place of the particular ion assisted application method taught in Ochiai to produce a layer pair structure for use in a laser device. Ans. 6, 18. The Examiner found that such a substitution simply requires the use of known technique to produce an equivalent product. Ans. 6–7, 18. Appellants have not provided persuasive argument that the Examiner’s findings are in error. Appellants focus on the differences between a YAG laser and a semiconductor laser without addressing the Examiner’s findings that the methods used to form the layer pairs in the two types of lasers are interchangeable to one of skill in the art. Br. 4–7. As such, we sustain the Examiner’s rejection of independent 1. Claims 2, 3, 5, 6, 9–16, and 24 As indicated above, Appellants have not separately argued the patentability of claims 2, 3, 5, 6, 9–16, and 24, which depend directly or 2 The Examiner cites to Grosman US 5,078,847 for teaching that ion plating results in ionized material being accelerated in an electric field towards the material to be coated. Ans. 18, citing Grosman col. 1:33–47. Appellants do not dispute that Parriaux teaches that ion plating results in ionized material being accelerated in an electric filed towards the material to be coated. We have not considered Grosman in assessing the rejection under consideration. Appeal 2013-003062 Application 11/904,203 6 indirectly upon claim 1. As such, we sustain the Examiner’s rejection of these claims as well. See Br. 7. Claims 17 and 25 Appellants assert the Examiner erred in rejecting independent claim 17 and dependent claim 25 as unpatentable over Ochiai and Murakami because neither reference teaches applying at least one layer by an ion assisted application method such that the at least one layer has a peak-to- peak roughness of less than approximately 4nm. Br. 7–10. In particular, Appellants argue that claim 17 requires the peak-to-peak roughness be formed during the ion assisted application method while Murakami teaches reducing the outermost layer after the layer is applied. Br. 9. This argument is not persuasive as the claims are product-by-process claims. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985). If the product in the product-by-process claim is the same as or obvious from the product of the prior art, the claim is unpatentable even though the prior art product was made by a different process. Id. The Examiner found, and Appellants have not rebutted, that the layer of Murakami is the same as the layer recited in claim 17. Appellants also argue that Murakami merely teaches reducing the roughness of the outermost layer while each of the layer pairs of Appellants claim 17 have a peak to peak roughness of less than 4 nm. Br. 9. This argument is not persuasive as the Examiner found, and Appellants have not rebutted, that Murakami teaches the ion beam polishing can be completed Appeal 2013-003062 Application 11/904,203 7 after the formation of each layer. Ans. 20, citing Murakami 14:18–38. We therefore sustain the Examiner’s rejection of claims 17 and 25. DECISION The Examiner’s Decision rejecting claims 1–3, 5, 6, 9–17, 24–25 under 35 U.S.C. §103(a) is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED sl Copy with citationCopy as parenthetical citation