Ex Parte Fattal et al

Patent Trial and Appeal Board

Jun 23, 2016

13259857 (P.T.A.B. Jun. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/259,857 09/23/2011 David A. Fattal
56436 7590 06/27/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82853239 4352
EXAMINER
ZHANG,YUANDA
ART UNIT PAPER NUMBER
2828
NOTIFICATION DATE DELIVERY MODE
06/27/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID A. F ATTAL, MARCO FIORENTINO, and
RAYMOND G. BEAUSOLEIL
Appeal2015-001245
Application 13/259,857
Technology Center 2800
Before: BRADLEY R. GARRIS, CHRISTOPHER L. OGDEN, and
AVEL YN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from a rejection of
claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In our decision below we refer to the Final Office Action appealed from,
mailed January 29, 2014 (Final Act.), the Appeal Brief filed on April 29,
2014 (Appeal Br.), the Examiner's Answer mailed August 18, 2014 (Ans.),
and the Reply Brief filed October 17, 2014 (Reply Br.).
2 Appellants identify the real party in interest as Hewlett-Packard
Development Company, the assignee of the instant application.
Appeal2015-001245
Application 13/259,857
STATEMENT OF CASE
The claims are directed to multimode vertical-cavity surface-emitting
laser arrays. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A monolithic surface-emitting laser device, comprising:
a reflective layer;
a light-emitting layer; and
a grating layer with at least two non-periodic, sub
wavelength gratings,
wherein each grating is to form a resonant cavity with the
reflector, and each grating is with a grating pattern that shapes
one or more internal cavity modes and shapes one or more
external transverse modes emitted through the grating,
wherein the at least two non-periodic, sub-wavelength
gratings are to generate a different phase shift from each other.
Claims Appendix at Appeal Br. 11.
REJECTIONS
The Examiner made the following rejections:
A. Claims 1-3, 5-10, 12, and 13 stand rejected under 35
U.S.C § 103(a) as being unpatentable over Cox3 in view of
Hori. 4 Final Act. 4.
B. Claim 4 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Cox and Hori (as applied to claim 1) and
in further view of Sigalas. Id. at 8.
3 Cox et al., US 2002/0106160 Al, published August 8, 2002 (hereinafter
"Cox").
4 Hori et al., US 2009/0196319 Al, published August 6, 2009 (hereinafter
"Hori").
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C. Claim 11 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Cox and Hori (as applied to claim 1) and
in further view of Justice. Id. at 9.
D. Claim 14 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Cox and Hori (as applied to claim 1) and
in further view of Shaw. Id.
E. Claim 15 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Cox and Hori (as applied to claim 1) and
in further view of VRTIS. Id. at 10.
F. Claims 16-19 stands rejected under 35 U.S.C §103(a) as
being unpatentable over Cox and Hori (as applied to claim
1) and in further view of Patel. Id. at 11.
Appellants seek our review of Rejections A-F but present no
additional argument for reversal of the rejections separate from what is
argued for claim 1. Appeal Br. 9-10. Therefore, we focus our discussion on
the rejection of claim 1 (Rejection A) to resolve the issues on appeal.
OPINION
The Examiner rejects claim 1 as being unpatentable, under 35 U.S.C.
§103(a), over Cox in view of Hori. Final Act. 4. The Examiner finds that
Cox teaches
a monolithic surface-emitting laser device (fig. 16) comprising:
a reflective layer (330, fig. 16, [0075]); a light-emitting layer
(332, fig. 16, [0075]); and a grating layer (334, wherein GMGRF
is integrated with 334, figs. 14 and 16, [0066]-[0070] and
[0075]), wherein each grating is to form a resonant cavity with
the reflector ([0066]-[0070]), and each grating is with a grating
pattern (300, 302, 304 and 306, fig. 14, [0066]-[0070]) that
shapes one or more internal cavity modes and shapes one or more
external transverse modes emitted through the grating (changing
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Application 13/259,857
wavelengths A.1-/A and their polarizations modes, fig. 16,
[0071]).
Id. 4-5. The Examiner acknowledges that Cox fails to expressly teach that
"the grating layer being with at least two non-periodic, subwavelength
gratings; wherein the at least two non-periodic, subwavelength gratings are
to generate a different phase from each other." Id. at 5. The Examiner
however, finds that Hori discloses a VCSEL (vertical-cavity surface-
emitting laser) that comprises "a photonic crystal mirror (707, fig. 7, [0183])
having a non-periodic, sub-wavelength grating (non-periodicity introduced
by phase shift parts 708, fig. 7, [0183])." Id. The Examiner also finds that
"wherein the at least two non-periodic, sub-wavelength gratings are to
generate a different phase from each other" is implicitly present because Cox
teaches grating patterns having different periods and Hori teaches non-
periodic grating with phase shift parts which therefore results in a
combination having "different phase shift parts for each of the grating
patterns." Id. And, according to the Examiner, one skilled in the art would
have reason to modify the laser of Cox with the non-periodic subwavelength
grating of Hori "to obtain desired reflectivity for producing single mode
oscillation ([0018] of Hori)." Id.
Appellants argue two-fold: ( 1) that the combination fails to teach "at
least two non-periodic, subwavelength gratings ... to generate a different
phase shift from each other" and (2) that a person of ordinary skill in the art
would not have reason to combine the references. Appeal Br. 5-6.
Beginning with Appellants' first argument, Appellants explain that the
phase-shift part of Hori reduces reflectivity and does not, as the Examiner
suggests, achieve phase shift. Id. at 6. Appellants argue that "[t]here is no
teaching or suggestion in Hori that the phase-shift part results in any desired
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phase shift." Id. As a result, there is no reason for a person of ordinary skill
in the art to "combine the grating patterns of Cox having different periods
with the disclosure in Hori of a single region of reduced reflectivity to
deduce an implicit disclosure" that is consistent with the claims. Id.
The Examiner finds that the phase-shift part is not necessarily limited
to mere reduction of reflectivity. Ans. 2. And, the Examiner finds that it is
inherent that a phase-shift part results in a shifting of phase. Id. at 3. The
Examiner further finds that there are no structural distinctions between the
phase-shift part of Hori and that of the claims; therefore, "the phase-shift of
Hori is considered equivalent to the structures implied by the claim for
creating a phase shift." Id. Therefore, according to the Examiner, one of
skill in the art would have combined the "laser device of Cox with the non-
periodic subwavelength grating as taught by Hori in order to obtain desired
reflectivity for producing single mode oscillation ([0018] of Hori)." Final
Act. 5.
We find no reversible error, for the reasons and findings expressed by
the Examiner. As the Examiner explains,
a phase-shift part, by definition, creates a phase shift. The phase
shift is induced by the phase-shift part which introduced a
nonperiodicity (caused by the phase-shift part having different
sizes or shapes) within the grating and the change in reflectivity
is a result of the induced phase shift ([0019] and [0183] of Hori).
Ans. 2. And, the Examiner determines that simply because the phase-shift
part of Hori is used to reduce reflectivity does not mean that it also does not
impart phase shift. Id. 2-3. In fact, Hori explains that
By passing the phase-shift part, the phases of guided light- I
(605) and reflected light-I (606) are shifted. In FIG. 6A, the
light having its phase shifted is denoted by the broken line.
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This reflected light-I (606) interferes with guided light-3 (611)
formed by diffraction of guided light-2 (610) which has not
passed through the phase-shift part to cause canceling with each
other by interference, whereby the reflectivity at and around the
phase-shift part can be controlled.
In particular, when the phase is shifted by /.../2 to cause destructive
interference, the reflectivity in this portion can be minimized.
Hori iii! 101-103 (emphasis added).
Moreover, the Examiner finds (and Appellants do not dispute) that
"[claim 1] also fails to recite any structural distinctions (i.e. specific grating
structures that enable different phase shifts) from what is taught by Hori ....
[therefore] the phase-shift part of Hori is considered equivalent to the
structures implied by the claim for creating phase shift." Ans. 3. We adopt
this finding as fact. In re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964)
("Since appellant has not shown this finding to be clearly erroneous, we
accept it as fact."). Thus, it is clear that the phase shift of the light is
separate from yet related to the control and reduction of reflectivity in Hori.
Id.
Second, Appellants argue that because "neither Cox nor Hori
addresses the problems addressed by Appellants' disclosure," there is no
attempt to achieve Appellants' "laser device which may provide wavelength
control over a broad range of reflectivity" through controlling phase shift.
Appeal Br. 7. Rather, Rori's purpose is to reduce or control reflectivity
through use of the "phase shift part." Appellants also contend that "[t]here
is absolutely no basis for the Examiner's position that 'applicant has
recognized another advantage which would flow naturally from following
the suggestion of the prior art,"' and that "[ w ]avelength control over a broad
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range of reflectivity would not 'flow naturally,' as alleged by the Examiner."
Id. at 8.
The Examiner explains "the fact that applicant has recognized another
advantage which would flow naturally from following the suggestion of the
prior art cannot be the basis for patentability when the differences would
otherwise be obvious." Ans. 3--4. Moreover, the Examiner states that
simply because the Examiner relies upon a motivation different from that
identified by Appellants similarly cannot provide a basis for patentability.
Id.
We again do not find Appellants' argument persuasive of reversible
error. As to the purpose Appellants urge the prior art fails to recognize-
that is, "that wavelength control over a broad range of reflectivity ... is
achieved by controlling the phase shift"-we find that the Appellants'
description of Hori is inaccurate. Appeal Br. 7 ("the sole purpose of the
'phase-shift part' of Hori is to reduce or control reflectivity"). As discussed
above, and as the Examiner finds, "reducing reflectivity is one of the
functions that the phase-shift part is capable of performing" and another is to
create phase shift. Ans. 3; see also Hori ,-i,-i 101-103. And, although
Appellants also assert the prior art does not disclose the advantage of the
instant invention, Appellants fail to explain why such a result would not
naturally flow from the prior art combination of a modified laser device with
the grating patterns, having different periods, of Cox with the non-periodic
subwavelength grating with phase shift of Hori. Ex parte Obiaya, 227
USPQ 58, 60 (BPAI 1985) ("The fact that appellant has recognized another
advantage which would flow naturally from following the suggestion of the
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prior art cannot be the basis for patentability when the difference would
otherwise have been obvious.")
CONCLUSION
Appellants have not shown reversible error by the Examiner in
rejecting claims 1-3, 5-10, 12, and 13 under 35 U.S.C §103(a) as being
unpatentable over Cox in view of Hori.
Appellants have not shown reversible error by the Examiner in
rejecting claim 4 under 35 U.S.C § 103(a) as being unpatentable over Cox
and Hori and in further view of Sigalas.
Appellants have not shown reversible error by the Examiner in
rejecting claim 11 under 35 U.S.C § 103(a) as being unpatentable over Cox
and Hori and in further view of Justice.
Appellants have not shown reversible error by the Examiner in
rejecting claim under 35 U.S.C §103(a) as being unpatentable over Cox and
Hori and in further view of Shaw.
Appellants have not shown reversible error by the Examiner in
rejecting claim 15 under 35 U.S.C § 103(a) as being unpatentable over Cox
and Hori and in further view ofVRTIS.
Appellants have not shown reversible error by the Examiner in
rejecting claims 16-19 under 35 U.S.C § 103(a) as being unpatentable over
Cox and Hori and in further view of Patel.
DECISION
For the above reasons, the Examiner's rejection of claims 1-19 is
affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l )(iv) (2009).
AFFIRMED
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