Ex Parte Bergman et al

Board of Patent Appeals and Interferences

Sep 27, 2010

10742426 (B.P.A.I. Sep. 27, 2010)

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.
10/742,426 12/19/2003 Michael John Bergman 5308-283 5906
20792 7590 09/27/2010
MYERS BIGEL SIBLEY & SAJOVEC
PO BOX 37428
RALEIGH, NC 27627
EXAMINER
NADAV, ORI
ART UNIT PAPER NUMBER
2811
MAIL DATE DELIVERY MODE
09/27/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL JOHN BERGMAN, DAVID TODD EMERSON,
AMBER CHRISTINE ABARE, and KEVIN WARD HABERERN
____________

Appeal 2009-007059
Application 10/742,426
Technology Center 1700
____________

Before EDWARD C. KIMLIN, CHUNG K. PAK, and
CATHERINE Q. TIMM, Administrative Patent Judges.

PAK, Administrative Patent Judge.

DECISION ON APPEAL1
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 3 through 6, 25, 26, 28, 29, 31, 32, 35

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-007059
Application 10/742,426

through 42, 94, 96, 100, and 102 through 108, all of the pending claims in
the above-identified application.2 We have jurisdiction under 35 U.S.C. §§
6 and 134.
STATEMENT OF THE CASE
Details of the appealed subject matter are recited in representative
claim 5 reproduced from the Claims Appendix to the Appeal Brief as shown
below:
5. A light emitting device comprising:

a silicon carbide substrate; and

a semiconductor structure on the silicon carbide substrate, the
semiconductor structure including a mesa having a mesa base adjacent
the substrate, a mesa surface opposite the substrate, and mesa sidewalls
between the mesa surface and the mesa base, wherein the semiconductor
structure has a first conductivity type portion adjacent the silicon carbide
substrate, wherein the semiconductor structure has a second conductivity
type portion adjacent the mesa surface, wherein the semiconductor
structure has a junction between the first and second conductivity types,
and wherein the mesa is configured to provide at least one of current
confinement or optical confinement in the semiconductor structure
wherein each of the first and second conductivity type portions of the
semiconductor structure comprises a Group III-V semiconductor
material, wherein the junction is between the mesa base and the mesa
surface, and wherein the junction is at least approximately 0.05 microns
from the mesa base.

As evidence of unpatentability of the claimed subject matter, the
Examiner relies on the following prior art references at page 3 of the Answer
(“Ans.”) dated November 14, 2008:
Edmond 6,120,600 Sep. 19, 2000
Kato 6,349,104 B1 Feb. 19, 2002

2 See Appeal Brief (“App. Br.”) 1-2 filed December 11, 2007.
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Appeal 2009-007059
Application 10/742,426

Applicants seek review of the Examiner’s rejection of claims 3
through 6, 25, 26, 28, 29, 31, 32, 35 through 42, 94, 96, 100 and 102 through
108 under 35 U.S.C. § 103(a) as unpatentable over the combined
disclosures of Edmond and Kato (App. Br. 4).
ISSUE AND CONCLUSION
The dispositive question is: Would the collective teachings of
Edmond and Kato have suggested the claimed light emitting or electronic
device having a junction between the mesa surface and base being located at
least approximately 0.05 microns from the mesa base within the meaning of
35 U.S.C. § 103(a)? On this record, we answer this question in the
affirmative.
FACTUAL FINDINGS, PRINCIPLES OF LAW AND ANALYSIS
Appellants do not dispute the Examiner’s finding at pages 3 and 4 of
the Answer that:
Edmond et al. teach in figure 2 and related text a light emitting
device comprising:
a silicon carbide substrate 41; and
a semiconductor structure on the substrate, the
semiconductor structure including a mesa having a mesa base
adjacent the substrate, a mesa surface opposite the substrate,
and mesa sidewalls between the mesa surface and the mesa
base,
wherein the semiconductor structure has a first
conductivity type adjacent the silicon carbide substrate, wherein
the semiconductor structure has a second conductivity type
adjacent the mesa surface,
wherein the semiconductor structure has a junction
between the first and second conductivity types (between layers
46 and 47), and wherein the mesa is configured to provide at
least one of current confinement or optical confinement for a
light emitting device in the semiconductor structure wherein the
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Appeal 2009-007059
Application 10/742,426

semiconductor structure comprises a Group III-V
semiconductor material,
wherein the junction is between the mesa base and the
mesa surface.

Instead, Appellants contend that neither Edmond nor Kato would have
suggested a junction between first and second conductivity types being at
least approximately 0.05 microns from the mesa base (App. Br. 5-7).
However, it can be inferred from Edmond that such junction between layers
47 and 46 having p- and n-conductivity types, respectively being located at
least 0.05 microns from the mesa base since Edmond teaches that n-AlGaN
and GaN layers located between the junction and the mesa base are each
about 1000 angstroms thick (2000 angstroms (2000 x 10-10m or 0.2
microns)) (col. 8, ll. 25-32 and Fig. 2). As stated in In re Preda, 401 F.2d
825, 826-27 (CCPA 1968):
[I]n considering the disclosure of a reference, it is proper to take
into account not only specific teachings of the reference but
also the inferences which one skilled in the art would
reasonably be expected to draw therefrom. (Citation omitted)).

See also KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 417-18 (2007) (In
making an obviousness determination one “can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ”);
Accordingly, we determine that the collective teachings of Edmond
and Kato would have led one of ordinary skill in the art to the claimed light
emitting or electronic device within the meaning of 35 U.S.C. § 103(a).
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Appeal 2009-007059
Application 10/742,426

ORDER
In view of the foregoing, the decision of the Examiner is affirmed.
However, since our rationale for affirming the Examiner’s decision is
materially different from that proposed by the Examiner, we denominate our
affirmance as including a new ground of rejection pursuant to 37 C.F.R.
§ 41.50(b).
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review."
37 C.F.R. § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner.

(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a) (2008).

AFFIRMED
§ 41.50(b)

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Appeal 2009-007059
Application 10/742,426

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MYERS BIGEL SIBLEY & SAJOVEC
PO BOX 37428
RALEIGH, NC 27627

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