Ex Parte SHIN et al

Patent Trial and Appeal Board

Jan 30, 2019

13593167 (P.T.A.B. Jan. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/593, 167 08/23/2012
30593 7590 02/01/2019
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 8910
RESTON, VA 20195
FIRST NAMED INVENTOR
Chang-gyun SHIN
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2557SI-001729/US 1043
EXAMINER
DA VIS ON, ANGELA K
ART UNIT PAPER NUMBER
2871
NOTIFICATION DATE DELIVERY MODE
02/01/2019 ELECTRONIC
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 sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
dcmailroom@hdp.com
jcastellano@hdp.com
jhill@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHANG-GYUN SHIN, MOON-GYU HAN,
HONG-SHIK SHIM, and SEOG-JIN JEON
Appeal2018-001745
Application 13/593,167
Technology Center 2800
Before JAMES C. HOUSEL, JENNIFER R. GUPTA, and
JANEE. INGLESE, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1-3, 5-8, 10-13, and 15. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 In this Decision, we refer to the Specification filed August 23, 2012
("Spec."), the Final Office Action dated January 12, 2017 ("Final Act."), the
Appeal Brief filed June 12, 2017 ("Appeal Br."), the Examiner's Answer
dated October 5, 2017 ("Ans."), and the Reply Brief filed December 5, 2017
("Reply Br.").
2 Appellants identify the real party in interest as Samsung Electronics Co.
Ltd. Appeal Br. 2.
Appeal2018-001745
Application 13/593,167
The subject matter on appeal relates to color image panels that include
pixels configured to display a color image where at least one of the pixels
includes a tunable photonic crystal filter. Spec. ,r,r 2, 8. Claim 1,
reproduced below from the Claims Appendix, is illustrative of the claims on
appeal.
1. A color image panel comprising:
pixels configured to display a color image, at least one of
the pixels including,
a tunable photonic crystal filter configured to
reflect light in a wavelength band of a selected color and to
transmit light in a wavelength band other than the wavelength
band of the selected color, the wavelength band of the selected
color being controlled by a stimulus controlling a photonic
bandgap of the tunable photonic crystal filter, and
a white display unit configured to control
saturation and brightness of color displayed by the tunable
photonic crystal filter by adding light transmitted via the
tunable photonic crystal filter to color light reflected from the
tunable photonic crystal filter; and
a controller configured to tune the photonic bandgap of
the tunable photonic crystal filter in each of the at least one
pixels by controlling the stimulus for each of the at least one
pixels to vary at least one of a shape, volume, and effective
refractive index of photonic crystals in the tunable photonic
crystal filter of each of the at least one pixels, the stimulus
including at least one of an electrical and a mechanical
stimulus,
wherein the tunable photonic crystal filter and the white
display unit correspond in a one-to-one manner within a single
pixel of the at least one of the pixels configured to display the
color image such that the color displayed by each of the pixels
is determined by the single corresponding tunable photonic
crystal filter, and the saturation and the brightness of the color
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Application 13/593,167
displayed by each of the pixels is determined by the single
corresponding white display unit.
Appeal Br. 14 (Claims App.).
DISCUSSION
The Examiner maintains the rejection of claims 1, 2, 5-7, and 10-12
under pre-AIA 35 U.S.C. § 103(a) over Okamoto et al. (JP 10-274780,
published October 13, 1998) ("Sharp")3 in view of Moon et al.
(US 7,064,886 B2, issued June 20, 2006). Final Act. 7-15; Ans. 2. The
Examiner also maintains the rejection of claims 3, 8, 13, and 15 under pre-
AIA 35 U.S.C. § 103(a) over Sharp in view of Moon and Dean
(US 2008/0074383, published March 27, 2008). Final Act. 16; Ans. 2.
Appellants do not present any separate patentability arguments
regarding the claims subject to the latter§ 103(a) rejection over Sharp in
view of Moon and Dean. Appeal Br. 12. Thus, we focus on the former
§ 103(a) rejection over Sharp in view of Moon. Appellants argue claims 1, 5
and 10 separately. Appeal Br. 6, 11-12. We will address Appellants'
arguments regarding each of those claims in tum below. Claims 2, 3, 6-8,
11-13, and 15, which are not separately argued (see Appeal Br. 6-13), will
stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
After review of the cited evidence in light of the Appellants' and the
Examiner's opposing positions, we determine that Appellants have not
identified reversible error in the Examiner's rejections. Accordingly, we
3 Both the Examiner and Appellants refer to this reference as Sharp based on
the name of the Applicant being Sharp Corp. instead of the name of the first
named inventor. See Final Act. 7-16; see also Appeal Br. 6-13. To avoid
confusion, we do the same in the Decision.
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Application 13/593,167
affirm the rejections for the reasons set forth below, in the Final Office
Action, and in the Examiner's Answer.
Claim 1
The Examiner finds that Sharp discloses pixels configured to display a
color image where at least one of the pixels includes a filter (2) and a white
display unit (1, 3, 4), but acknowledges that Sharp does not disclose a
tunable photonic crystal filter or a controller configured to tune the photonic
bandgap of the tunable photonic crystal filter in each of the at least one
pixels by controlling the stimulus for each of the at least one pixels to vary at
least one of a shape, volume, and effective refractive index of photonic
crystals in the tunable photonic crystal filter of each of the at least one
pixels, the stimulus including at least one of an electrical and a mechanical
stimulus. Final Act. 7 ( citing Sharp ,r 34; Fig. 4); see also id. at 8-12.
The Examiner finds that Moon discloses a filter that is a tunable
photonic crystal filter, and the color, which is determined by the wavelength
of light, is selected by varying the size of the particles comprising the
photonic crystal. Final Act. 8 (citing 3:33-50, 4:29-30; Fig. 3B). In
addition, the Examiner finds that Moon discloses a controller 104 capable of
controlling the stimulus (Figs. 3A-3C, the signal generated by the
controller) to vary at least one of shape, volume and effective refractive
index of photonic crystals (varying refractive index disclosed in col. 4,
lines 5-10) in the tunable photonic crystal filter of at least one of the pixels
(at least one pixel disclosed in Figs. 3A-3C), the stimulus including at least
one of an electrical and a mechanical stimulus ( controller 104 outputs an
electrical stimulus). Final Act. 11-12.
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Application 13/593,167
The Examiner concludes that it would have been obvious to a person
of ordinary skill in the art at the time the invention was made to modify
Sharp to include a tunable photonic crystal filter, the color being selected, a
wavelength band of the selected color capable of being controlled by a
stimulus that controls a photonic bandgap of the tunable photonic crystal
filter, and to include a controller capable of controlling the stimulus to vary
at least one of shape, volume, and effective refractive index of photonic
crystals in the tunable photonic crystal filter, the stimulus including an
electrical stimulus, as disclosed by Moon, "to have a highly tunable filtering
device capable of displaying tighter, narrow wavelengths of color to improve
color saturation and brightness." Id. at 12.
Appellants' assertion that the Examiner has not demonstrated that the
device of Sharp, as modified by Moon, teaches a controller "configured to
tune the photonic bandgap by controlling the stimulus to vary at least one of
shape, volume and effective refractive index of photonic crystals in the
tunable photonic crystal filter," as recited in claim 1 (Appeal Br. 7) is not
persuasive of reversible error because it is merely attorney argument
unsupported by evidence or persuasive technical reasoning that is consistent
with the record. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
("Attorney's argument in a brief cannot take the place of evidence."). The
Examiner explains in detail how Moon's controller meets claim 1 's
controller recitation. Final Act. 10-12; see also Moon 4:24--26, Figs. 3A-
3C (teaching that Moon's power supply 104 (controller), capable of
controlling the stimulus (the signal generated by the controller) to vary the
refractive index of the photonic crystals). Appellants provide no persuasive
evidence or explanation as to why the Examiner's explanation fails to
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Application 13/593,167
demonstrate that Moon's controller, when incorporated in Sharp's device,
would have been capable of turning the photonic bandgap by controlling the
stimulus to vary at least one of shape, volume, and effective refractive index
of photonic crystals in the tunable photonic crystal filter. Appeal Br. 7.
Similarly, Appellants' assertion that Sharp teaches away from
incorporating Moon's power supply 104 (controller) into Sharp's liquid
crystal display device is not persuasive of reversible error (Appeal Br. 7-8)
because Appellants fail to point to any disclosure in Sharp or Moon that
criticizes, discredits, or otherwise discourages incorporating a power supply
into Sharp's liquid crystal display device. In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). Nor do Appellants argue that incorporating Moon's power
supply into Sharp's liquid crystal display device would have been beyond
the level of skill and creativity in the art.
Appellants contend that both Sharp and Moon disclose three separate
color filters that correspond in a one-to-one manner within a single pixel.
Appeal Br. 9 (citing Sharp, Fig. 4; Moon, Fig. 4). Thus Appellants argue
that Sharp and Moon, alone or in combination, fail to teach or suggest
wherein the tunable photonic crystal filter and the white display
unit correspond in a one-to-one manner within a single pixel of
the at least one of the pixels configured to display the color image
such that the color displayed by each of the pixels is determined
by the single corresponding tunable photonic crystal filter, and
the saturation and the brightness of the color displayed by each
of the pixels is determined by the single corresponding white
display unit,
as recited in claim 1. Id.
Appellants' argument is not persuasive of reversible error. Even if
Moon's Figure 4 may disclose separate photonic crystal filters for a single
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pixel, as Appellants argue, Moon is not limited to Figure 4. That is, Moon's
disclosure also includes Figures 3A-3C, which allows for a single photonic
crystal filter per pixel. Moon 4: 15-30, Figs. 3A-3C.
Appellants argue that the Examiner does not point out where Moon
discloses "a tunable photonic crystal filter configured to reflect light in a
wavelength band of a selected color and to transmit light in a wavelength
band other than the wavelength band of the selected color," as recited in
claim 1. Appeal Br. 10. Therefore, Appellants argue that Sharp and Moon,
alone or in combination, fail to teach "pixels configured to display a color
image, at least one of the pixels including ... a tunable photonic crystal
filter configured to reflect light in a wavelength band of a selected color and
to transmit light in a wavelength band other than the wavelength band of the
selected color, the wavelength band of the selected color being controlled
based on a stimulus controlling a photonic bandgap of the tunable photonic
crystal filter" as recited in claim 1. Id.
Appellants' arguments are not persuasive of reversible error because
they fail to address or identify error in the Examiner's findings in the Final
Office Action regarding Moon. On this record, it is undisputed that Moon
teaches a filter that is a tunable photonic crystal filter. See Appeal Br. 6-12.
Further, the Examiner finds, and Appellants do not dispute, that Moon
teaches that its tunable photonic crystal filter in Figure 3B is capable of
reflecting light in a wavelength band of a selected color and to transmit light
in a wavelength band other than the wavelength band of the selected color.
Compare Ans. 9-10 (citing Moon 5:7-12, 17-23, Fig. 3B), with Reply
Br. 4---6.
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Application 13/593,167
Appellants' assertion that the Examiner does not provide a clear
rationale including articulated reasoning that one of ordinary skill in the art
would have been motivated to make the proposed combination of Sharp and
Moon (Appeal Br. 10-11) is not persuasive of reversible error. Contrary to
Appellants' argument, the Examiner has clearly articulated a reason for one
of ordinary skill in the art to combine Sharp and Moon. Final Act. 12.
Appellants do not address or identify harmful error in the Examiner's
reasomng.
After considering the totality of the appeal record, including due
consideration of Appellants' arguments and evidence, a preponderance of
the evidence weighs in favor of the Examiner's conclusion of obviousness.
Therefore, we sustain the Examiner's rejection of claims 1, 2, 6, 7, 11, 12
under pre-AIA 35 U.S.C. § 103(a) over Sharp in view of Moon.
Appellants simply argue that Dean does not cure the deficiencies of
Sharp and Moon with regard to the rejection of claim 1. Appeal Br. 12.
Because we do not find any deficiencies in the Examiner's rejection of
claim 1 over Sharp and Moon, we likewise sustain the Examiner's rejection
of claims 3, 8, 13 and 15 under pre-AIA 35 U.S.C. § 103(a) over Sharp in
view of Moon and Dean.
Claims 5 and 10
Claims 5 depends from claim 1 and recites "wherein the tunable
photonic crystal filter comprises[] a photonic crystal layer containing
charged colloid particles dispersed in a solvent." Appeal Br. 15 (Claims
App.). Claim 10, which depends from claim 6, includes this same recitation.
Id. at 16 (Claims App.).
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Application 13/593,167
The Examiner finds that Moon discloses a photonic crystal layer 101
(Fib. 3B) containing charged colloid particles dispersed in a solvent (i.e., an
electro-optic material). Final Act. 13 (citing Moon 4:24--29).
Appellants contend that Moon discloses that a photonic bandgap is
formed by filling empty space of an opal-structured photonic crystal, i.e., the
space among colloidal particles, with an electro-optic material and
regulating a difference of refractive indices of the electro-optic material and
the colloidal particles. Appeal Br. 12 (citing Moon 3:55-59). Therefore,
Appellants argue that Moon fails to teach or suggest "the tunable photonic
crystal filter comprises[] a photonic crystal layer containing charged colloid
particles dispersed in a solvent." Id. at 11.
Appellants' argument is not persuasive of reversible error. Although
ordinarily the meaning of a solvent is a liquid in which a solute is dissolved,
Appellants' Specification gives no indication that the charged particles of its
tunable photonic crystal filter are dissolved in a liquid solvent. Rather,
Appellants' Specification describes the charged colloid particles of its
tunable photonic crystal filter as being dispersed in a medium. Spec. ,r 39;
Fig. 2. Thus, when given its broadest reasonable interpretation, we are not
persuaded that the Examiner erred in determining that the scope of the
claimed "solvent" recited in claims 5 and 10 encompasses a medium, such as
an electro-optic material as disclosed in Moon (3:55-59). In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997) (During prosecution, the PTO gives
the language of the proposed claims "the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
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contained in the applicant's specification."). Thus, we sustain the
Examiner's rejection of claims 5 and 10 under pre-AIA 35 U.S.C. § 103(a)
over Sharp in view of Moon.
DECISION
The rejections of claims 1-3, 5-8, 10-13, and 15 are 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
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