13698714 (P.T.A.B. Jul. 16, 2018)

Ex Parte Cornelissen et al

Patent Trial and Appeal BoardJul 16, 2018

13698714 (P.T.A.B. Jul. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/698,714 11/19/2012 138325 7590 07/18/2018 PHILIPS LIGHTING HOLDING B.V. 465 Columbus A venue Suite 330 Valhalla, NY 10595 FIRST NAMED INVENTOR Hugo Johan Cornelissen 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. 201 OP00494WOUS 2652 EXAMINER PILLAY, DEVINA ART UNIT PAPER NUMBER 1726 NOTIFICATION DATE DELIVERY MODE 07/18/2018 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): kim. larocca@signify.com jo.cangelosi@signify.com Gigi.MillerÂ© signify. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HUGO JOHAN CORNELISSEN and SIEBE TJERKDE ZWART Appeal2017-008643 Application 13/698,714 1 Technology Center 1700 Before ROMULO H. DELMENDO, BEYERL YA. FRANKLIN, and SHELDON M. McGEE, Administrative Patent Judges. McGEE, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. Â§ 134, Appellants seek our review of the Examiner's rejections of claims 1 and 3-14. App. Br. 2. We have jurisdiction. 35 U.S.C. Â§ 6. We affirm. 1 Appellants identify Philips Lighting Holding N.V. as the real party in interest. App. Br. 2. Appeal2017-008643 Application 13/698,714 SUBJECT MATTER The subject matter on appeal concerns a luminescent solar concentrator (LSC) system for collecting external light such as sunlight, and converting the collected light into electrical energy. Spec. 1 :27-29. Figure 1 of Appellants' Specification is illustrative and is depicted below: FIG. 1 1 / / . .,;, 100 /- Figure 1 is a sectional view of a LSC system 100, containing converter modules 111 having a thickness D constituting a luminescent converter component 110, and wavelength-selective mirroring surfaces constituting light extraction components 114 which extract light from converter component 110. Spec. 7:9-14. The light extraction components 114 are arranged at extraction sites EX and are spaced apart from each other by a distance W. Spec. 7:14--16. A solar cell 121 is provided at each extraction site EX. Spec. 7: 16-1 7. When the LSC system is exposed to direct external light, such as sun-light A1 and/or diffuse light A2, the light enters into modules 111 through surface 112. Spec. 7: 18-20. "Light 2 Appeal2017-008643 Application 13/698,714 impinging on the wavelength-selective mirroring surfaces 114 may pass [the outer surface 112] and either enter the modules 111 or directly reach the solar cells 121." Spec. 7:20-21. Sole independent claim 1 is copied below from the Claims Appendix of the Appeal Brief: 1. A Luminescent Solar Concentrator system [100], comprising: a) a luminescent converter component [110] having a thickness D between an outer surface and inner surface and a ratio R between the absorption coefficient (ax) for sunlight and the reabsorption coefficient ( ac) for luminescence light, wherein the coefficients are determined using all of the luminescent converter component's material; [and] b) a plurality of light extraction components [ 114] for extracting light from the luminescent converter component through its inner surface, wherein said components are located at extraction sites (EX) having distances W from each other, wherein 0.02Â· RÂ· D :SW :S 0.1 Â· RÂ· D. THE REJECTIONS The Examiner rejected the following claims under 35 U.S.C Â§ I03(a): I. Claims 1, 3, 4, 9--11, and 14 as unpatentable over Brounne; 2 II. Claims 1 and 3-11 as unpatentable over Kenney3 in view of Brounne; III. Claim 12 as unpatentable over Kenney in view of Brounne and further in view of Debije; 4 2 Brounne et al., US 2009/0126778 Al, published May 21, 2009. 3 Kenney et al., US 2010/0224248 Al, published September 9, 2010. 4 Debije et al., US 2009/0027872 Al, published January 29, 2009. 3 Appeal2017-008643 Application 13/698,714 IV. Claim 13 as unpatentable over Kenney in view of Brounne and further in view of Vasylyev; 5 and V. Claim 14 as unpatentable over Kenney in view of Brounne and further in view of Tang. 6 OPINION We have considered Appellants' arguments (App. Br. 2-8; Reply Br. 2-7) to the extent they comply with our rules, and are unpersuaded that Appellants have identified reversible error in the Examiner's rejections. In re Jung, 637 F.3d 1356, 1365---66 (Fed. Cir. 2011). Therefore, we sustain obviousness Rejections I- V based on the fact findings and legal conclusions provided by the Examiner in the Final Action and the Answer. We add the following comments for emphasis, beginning with Rejections II- V. Rejections II - V Appellants fail to provide any substantive arguments regarding Rejections II- V which rely on the combined disclosures of at least Kenney and Brounne, and encompass all rejected claims on appeal, i.e., claims 1 and 3-14. Final Act. 4--9. 7 Rather, Appellants focus their appeal arguments on 5 Vasylyev, US 2010/0278480 Al, published November 4, 2010. 6 Tang et al., US 2008/0019658 Al, published January 24, 2008. 7 We do not consider Appellants' argument regarding Kenney bridging pages 6 and 7 of the Reply Brief because Appellants fail to show good cause why this argument could not have been made in the Appeal Brief. See 3 7 C.F.R. Â§ 41.37 (c)(l)(iv) ("Except as provided for inÂ§Â§ 41.41, 41.47, and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal."). See also 37 C.F.R. Â§ 41.4I(b)(2) ("Any argument raised in the reply brief 4 Appeal2017-008643 Application 13/698,714 Rejection I which is based on Brounne alone. App. Br. 2-7; Final Act. 3--4. The only mention of the Kenney reference in Appellants' Appeal Brief is a mere statement of what the Examiner already acknowledges is missing from the Kenney reference. App. Br. 7 ("As [indicated] in the Final Office Action, Kenney fails to teach a plurality of light extraction components, [ and] that the [] extraction sites (EX) having distances W from each other, wherein 0.02Â· RÂ· D :SW :S 0.1 Â· RÂ· D," and "the addition of Brounne fails to cure the infirmities of Kenney"). The Examiner, however, does not rely on the Brounne reference for the admitted deficiencies of Kenney as Appellants' argument suggests. Rather, regarding the recited "plurality of light extraction components" limitation, the Examiner states that because Kenney discloses an alternative embodiment in Figure 28 with "multiple solar cells [that] can be coupled with multiple luminescent converters on a single substrate," it would have been obvious to "increase the number of extraction components and solar cells as disclosed by Kenney in order to increase the amount of solar energy harvested." Final Act. 5. Furthermore, the Examiner relies on an optimization theory to satisfy the distance parameter "W" limitation - not on the disclosure of Brounne. Final Act. 6. Therefore, Appellants do not address, much less reveal error in, the Examiner's proffered rationale for concluding that rejected claims 1 and 3- 14 are unpatentable over the combined disclosures of Kenney and Brounne, which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner's answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown."). 5 Appeal2017-008643 Application 13/698,714 i.e., Rejections II- V. For this reason, and those provided by the Examiner, we sustain these rejections. Rejection I Turning back now to Rejection I, we note that, in the Final Rejection, the Examiner finds that Brounne discloses all of the elements recited in claim 1, but for the limitation requiring the extraction sites (EX) to have "distances W from each other, wherein 0.02Â· RÂ· D :SW :S 0.1 Â· RÂ· D." The Examiner determines, however, that it would have been obvious for the skilled artisan to modify the distances between extraction sites to have the recited distances "because it will allow for optimization of the amount of light harvested and also the number of solar cells in the array." Final Act. 3- 4. In the Answer, the Examiner finds further that because "Brounne discloses the same transparent matrix and luminescent material of Appellant[ s] which is polycarbonate mixed with Lumogen Â® F Red 305 [0081] [0082]," and because "Appellant[s] disclose[] that polycarbonate mixed with Lumogen Â® F Red 305 has a R value of 100 (see pg. 8, lines 5- 15 of Appellant[s'] specification)," Brounne in fact "does disclose a W which is in the required range," i.e., 50 mm, based on Brounne's thickness value D of "between 2 to 5 mm," and Brounne' s disclosure of a polygon edge's width from 50 mm to 250 mm. Ans. 8-9. Thus, on this record, the Examiner provides two distinct rationales to satisfy the distance "W" limitation - i.e., the distance "W" would have been optimizable by the skilled artisan (Final Act. 3--4; Ans. 9), and the distance "W" is disclosed or suggested in Brounne (Ans. 8-10). 6 Appeal2017-008643 Application 13/698,714 In the Appeal Brief, Appellants state that the distance parameter "W" would not be optimizable without impermissible hindsight. App. Br. 7. Appellants repeat this argument in the Reply Brief. Reply Br. 6. Such conclusory assertions are not persuasive of reversible error, however, because they fail to explain why such optimization would be beyond the skill level of the ordinary artisan practicing routine experimentation. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456 (CCPA 1955). In the Reply Brief, Appellants do not challenge the specifics of the Examiner's calculations, but rather contend the Examiner's finding that Brounne expressly discloses the distance "W" (Ans. 8-9) is erroneous because "the R value of the whole converter component's material has not been determined, only the R value of the luminescent material," and that "it is likely that if the whole converter component's material was used to determine the R value it would not be 100." Reply Br. 4 (emphasis added). We are left unpersuaded by this argument. Here, the Examiner finds that Brounne discloses the identical polycarbonate matrix and identical luminescent material as disclosed by Appellants. Ans. 8. Compare Brounne ,r,r 81, 82 ("the polymer may be a polycarbonate or acrylic ester polymer" and "may contain about 0.02 weight percent of the fluorescent colarant" - one of which may be Lumogen Â® F Red 305) with Spec. 8:5-14 (explaining that possible transparent polymers into which a luminescent material may be placed include "a polycarbonate or acrylic ester polymer," and that one such luminescent material is Lumogen Â® F Red 305). Therefore, based on such similarities, it is reasonable to presume that the ratio R of absorption and reabsorption coefficients (axlac) in the prior art is the same or similar to that 7 Appeal2017-008643 Application 13/698,714 encompassed by claim 1. "Where ... the claimed and prior art products are identical or substantially identical ... the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. ... [The] fairness [of the burden- shifting] is evidenced by the PTO' s inability to manufacture products or to obtain and compare prior art products." In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Here, Appellants fail to carry their burden of distinguishing the claimed subject matter over that disclosed in the prior art. Indeed, rather than present objective evidence that the R value of Lumogen Â® F Red 305 is somehow altered when used in a polymeric matrix such as those disclosed by Brounne (i-f81) and Appellants' Specification (8:5-15), Appellants merely state that "it is likely" that the R value would change. Reply Br. 4. Such statements, without more, are insufficient to rebut the Examiner's obviousness conclusion. It follows that we sustain Rejection I. DECISION The Examiner's final decision to reject claims 1 and 3-14 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 8