Ex Parte Hannington

Board of Patent Appeals and Interferences

Jun 2, 2009

11055159 (B.P.A.I. Jun. 2, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL E. HANNINGTON
____________

Appeal 2009-2045
Application 11/055,159
Technology Center 2600
____________

Decided:1 June 2, 2009
____________

Before JOSEPH F. RUGGIERO, ROBERT E. NAPPI, and
KARL D. EASTHOM, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the final rejection of
pending claims 1-20 (App. Br. 2).2 We have jurisdiction under 35 U.S.C. §
6(b).
We affirm.
Appellant’s invention provides a lighting system comprising a
primary light source 12 and a passive light source 14 for supplying light to a
viewing environment. The primary light source may be powered by
electricity or consist solely of sunlight. The passive source supplies light in
the absence of the primary source. The passive light source comprises a
phosphorescent material, which may be coated on or embedded in a
substrate having an optical transmittance of at least 50% (Spec. 2:3-13; Fig.
1).
Exemplary claim 1 follows:
1. A lighting system comprising a primary light source
for supplying primary light to a viewing environment and a
passive light source for supplying light to the viewing
environment when the primary light source is unavailable and
the viewing environment is dark;
wherein the passive light source comprises a substrate
carrying a phosphorescent material;
wherein the substrate is positioned between the primary
light source and the viewing environment; and
wherein the substrate has an optical transmittance of at
least 50%, whereby primary light from the primary light source
can be transmitted therethrough to the viewing environment.

2 Appellant’s Brief (filed July 23, 2007) (“App. Br.”) and Reply Brief (filed
Jan. 22, 2008) (“Reply Br.”) and the Examiner’s Answer (mailed Nov. 23,
2007) (“Ans.”) detail the respective positions of the parties.
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The Examiner relies on the following prior art references:
Wetzel US 4,213,115 Jul. 15, 1980
Logan US 4,466,208 Aug. 21, 1984
Weidenbach US 2001/0047851 A1 Dec. 6, 2001
Koide US 2004/0150352 A1 Aug. 5, 2004
(filed Jan. 23, 2004)
The Examiner rejected as obvious under 35 U.S.C. § 103(a): claims 1-
5, 10-12, 16, 17, 19, and 20 based on Logan and Koide; claims 6-9 based on
Logan, Koide, and Weidenbach; and claims 13-15 and 18 based on Logan,
Koide, and Wetzel.

ISSUES
Appellant’s arguments (App. Br. 5-9) focus on alleged errors by the
Examiner. The following issues are before us:
First, did Appellant show that the Examiner erred in finding that
Logan and Koide collectively teach: 1) a phosphorescent-carrying substrate
having a transmittance of 50% or higher as claim 1 requires; 2) the substrate
emission rate as claim 2 requires; 3) “the phosphorescent material in a
density corresponding to the desired optical transmittance and emission” as
claim 11 requires; and 4) “wherein the phosphorescent material is distributed
on the substrate to provide useful indicia during dark conditions” as claim 20
requires?
Second, did Appellant show that the Examiner erred in finding that
Logan, Koide, and Weidenbach collectively teach: 1) a primary light source
of sunlight as claim 6 requires; and 2) “wherein the substrate is a clear
polymer film” as claim 7 requires?
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Finally, did Appellant show that the Examiner erred in finding that
Logan, Koide, and Wetzel collectively teach “wherein the substrate is an
envelope that surrounds the lighting components” as claim 13 requires?

FINDINGS OF FACT (FF)
Appellant’s Disclosure
1. Appellant’s disclosed “passive light source comprises a substrate
which carries a phosphorescent material . . . . The substrate has an optical
transmittance of at least 50% . . . . The substrate can comprise, for example,
a film, a cover, an envelope (i.e., a bulb), and/or a window-pane.” (Spec.
2:8-18).
2. Appellant’s disclosure states: “the phosphorescent-carrying
substrate 30 has an emission of at least 15.0 mcd/m2 at ten minutes . . . and
at least 2.8 mcd/m2 at sixty minutes. These emission levels are necessary to
satisfy IMO and ASTM standards, respectfully, for emergency visibility
requirements.” (Spec. 7:13-18).
Logan
3. Logan discloses an exit sign comprising an electro-luminescent
(EL) “primary light source” 18 and secondary phosphorescent light source
19 (Abstract; col. 4, ll. 41-46; Fig. 1). The “translucent phosphorescent
sheet 19 stores light energy emitted by the EL lamp 18 as well as ambient
light energy while allowing light from the EL lamp to pass therethrough and
out of the stencil opening 13” (col. 4, ll. 32-35). The secondary light source
glows, allowing the exit sign to be visible even when power to the primary
light source fails (Abstract).
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4. Logan’s housing 11 and panel 17 enclose the primary EL light
source panel/lamp 18, the translucent secondary phosphorescent sheet 19,
and a transparent protective plastic sheet 20 abutting the sheet 19, all in a
layered configuration. The housing 11 consists of side flanges 16
cooperating with the back panel 17 to form the enclosure. The perimeter of
EL light source layer 19 is depicted as larger than that of the layer 18 and
also extends beyond lighting components 25 on circuit board 21 attached to
layer 18. A power plug 50 for powering driving layer 18 in conjunction with
components 25 is attached to layer 18 within the perimeter of layer 18.
(Figs. 1, 3, 5, 6; col. 3, ll. 9-18; col. 4, ll. 46-52).
5. The front face 12 of the housing 11 is cut out “to make a stencil
forming the word ‘EXIT’” through which the primary EL and secondary
phosphorescent light passes (col. 3, ll. 6-9; col. 4, ll. 32-40; Fig. 1).
Koide
6. Koide discloses an “organic electroluminescent element 1 . . .
formed on the substrate 2 . . . . The substrate 2 is formed of, for example,
glass, silicon, ceramics such as quartz, plastic, or metal” (¶ 0026). The
substrate may be formed of more than one layer (id.). The luminescent
material can be phosphorescent (¶ 0003).
7. The luminescent element 1 comprises a cathode 15, anode 11, and
organic layer 20 therebetween. The organic layer comprises hole 12 and
electron 14 transport layers and a light emitting layer 13 therebetween. (¶
0024; Fig. 1).
8. Koide states that “the substrate 2 must permit light emitted by the
light emitting layer 13 to pass through. In this case, the light transmittance
of the substrate 2 is preferably equal to or more than 50%.” (¶ 0026).
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9. In addition to the substrate, Koide discloses that all the layers
surrounding the light emitting layer 13 (i.e., layers 11, 12, 14, and 15)
preferably have a light transmittance of more than 50% to allow light to pass
therethrough (¶¶ 0031, 0038, 0049, 0054; Fig. 1).
Weidenbach
10. Weidenbach discloses a light passing substrate 15 having
illuminating phosphorescent or luminescent (P/L) material thereon to
provide illumination in darkness. The P/L material is charged by sunlight
passing through the light passing substrate. The substrate is in the form of a
window shade or cover and may be plastic. (¶¶ 0022, 0029-31; Figs. 1-4;
Abstract).
Wetzel
11. Wetzel discloses a protective housing 30 comprising a frusto-
conical interior surface 31 and clear plastic lens 33 mounted over the
forward open end of the housing to protect a strobe lamp 20 from weather
damage while allowing light to exit the lens. A phosphorescent coating on
the housing surface 31 surrounds the lamp 20 and extends the perceived
light flash duration of lamp 20, making it more effective as a locomotive
warning signal. (Abstract; Figs. 7, 8; col. 3, l. 63 to col. 4, l. 28).

PRINCIPLES OF LAW
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Under § 103, a holding
of obviousness can be based on a showing that “there was an apparent
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reason to combine the known elements in the fashion claimed.” KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Such a showing requires:
“some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness” . . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.
Id. (citation omitted).
KSR outlined additional showings of obviousness: “[W]hen . . . the
prior art . . . is altered by the mere substitution of one element for another
known in the field, the combination must do more than yield a predictable
result.” Id. at 416. “[W]hen a patent ‘simply arranges old elements with
each performing the same function it had been known to perform’ and yields
no more than one would expect from such an arrangement, the combination
is obvious.” Id. at 417 (citation omitted). In “difficult . . . cases . . . the
claimed subject matter may involve more than the . . . mere application of a
known technique to a piece of prior art ready for the improvement.” Id.
“‘Our suggestion test is in actuality quite flexible and not only permits, but
requires, consideration of common knowledge and common sense.’” Id. at
421 (citation omitted).
If the Examiner makes such a showing, the burden then shifts to
Appellant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See Oetiker, 977 F.2d at 1445.

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ANALYSIS
Claims 1, 5, 10, 16, and 19
Appellant argues that Koide’s “teachings on transmittance are directed
towards the substrate 2, which is completely separate from the . . .
phosphorescent-carrying layers 13/131/132,” and therefore, primary light
does not pass through the phosphorescent-carrying layers of Koide or Logan
(App. Br. 6-7).3 The argument lacks merit. Koide’s substrate 2, as the
Examiner reasoned (see Ans. 8), constitutes “a substrate carrying a
phosphorescent material” as set forth in claim 1. The fact that Koide may
disclose additional substrates that aid in “carrying” phosphorescent materials
does not defeat the finding that the Koide’s substrate 2 carries the
phosphorescent material (FF 6-9), thereby meeting the disputed element of
claim 1.
Appellant’s recitation of the open-ended word “comprising” in claim
1 allows for extra substrate layers. Further, claim 1 also does not require the
phosphorescent material and substrate to have 50% transmittance, contrary
to any of Appellant’s arguments, implied or otherwise (see Reply Br. 2 –
arguing “there is no reason for the Logan sheet 19 to have an optical
transmittance of at least 50%.”). The claim only requires a substrate, which
carries a phosphorescent material, to have the recited transmittance of at
least 50%. This claim interpretation comports with Appellant’s broad
disclosure (see FF 1). As such, Logan’s sheet 20 and Koide’s sheet 2 each
correspond to the recited substrate of claim 1. The sheets 20 and 2 each

3 Appellant groups claims 1, 5, 10, 16, and 19 together without separate
patentability arguments (see App. Br. 5-7). Accordingly, claim 1 is selected
to represent the group. See 37 C.F.R. § 41.37(c)(1)(vii).
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carry phosphorescent materials in the adjacent abutting layers 19 and 13
respectively (FF 4, 6-9). Alternatively, the implied substrate portion of the
sheet 19 of Logan also “comprises a substrate carrying a phosphorescent
material” as recited in claim 1. Modifying Logan’s sheet 20 or the substrate
portion of Logan’s sheet 19 to have Koide’s suggested transmittance would
have been obvious in light of Koide’s teachings.
That is, Koide teaches that all layers surrounding (i.e., “carrying”) the
phosphorescent material 13 preferably have an optical transmittance of at
least 50% to allow light to pass therethrough (FF 9). Logan discloses a
similar transparent layer 20 and additionally teaches a “translucent
phosphorescent sheet 19 [which] stores light energy emitted by the EL lamp
18 as well as ambient light energy while allowing light from the EL lamp to
pass therethrough and out of the stencil opening 13” (FF 3). Therefore, the
combined teachings amount to, at most, “the mere substitution of one
element for another known in the field” to yield a predictable beneficial
result of enhanced light passage. See KSR, 550 U.S. at 416.
Appellant’s assertion (App. Br. 5) that Logan discloses an
electroluminescent lamp (EL) 18 and therefore does not disclose a primary
light also lacks merit. Logan’s EL lamp 18 is driven electrically and
described as a “primary light source” (FF 3, 4). Appellant’s related assertion
(App. Br. 5) that “Logan would not work” if one removed Logan’s primary
EL lamp source 18 and replaced it with Koide’s passive phosphorescent-
carrying substrate mischaracterizes the Examiner’s rationale of replacing or
modifying the transmittance of Logan’s passive translucent secondary light
source sheet 19 (or transparent substrate layer 20) to allow more light to pass
from the primary EL source 18 therethrough (see Ans. 3, 4, 7; FF 4).
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Accordingly, we will sustain the Examiner’s rejection of claim 1, and
claims 5, 10, 16, and 19, not separately argued.
Claims 2-4
Appellant’s argument4 (App. Br. 7) that “neither Logan nor Koide
teaches such emission rates in combination with a 50% or more
transmittance” fails to address the Examiner’s reasoning based on
obviousness. That is, the Examiner reasoned that such emission properties
would have constituted obvious optimal emission qualities required for
visibility (Ans. 4). The Examiner also found that the combination of Logan
and Koide teach the 50% substrate transmittance as discussed supra (Ans. 3,
4). Appellant admits that the recited emissions are required for emergency
lighting according to known standards (FF 2). The Examiner’s findings
constitute “‘some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness,’” see KSR, 550 U.S. at 418
(citation omitted). Appellant’s conclusion that neither reference teaches the
combination does not demonstrate error. Accordingly, we will sustain the
Examiner’s rejection of claim 2, and claims 3 and 4, which were not
separately argued.
Claims 11, 12, and 17
Appellant argues5 as follows: “No where [sic] in Logan or Koide does
it mention a substrate having an optical transmittance, and therefore a
density corresponding to the desired optical transmittance is not taught and

4 Appellant groups claims 2-4 together (App. Br. 7). Accordingly, claim 2 is
selected to represent the group. See 37 C.F.R. § 41.37(c)(1)(vii).
5 Appellant groups claims 11, 12, and 17 together (App. Br. 7).
Accordingly, claim 11 is selected to represent the group. See 37 C.F.R. §
41.37(c)(1)(vii).
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cannot be determined from Logan or Koide” (App. Br. 7). This argument is
not persuasive for reasons noted above. That is, Logan and Koide do
collectively teach the substrate transmittance, contrary to Appellant’s
argument. Additionally, the references teach a desire to render the emitted
phosphorescent light visible (see FF 3, 5, 8-9). Therefore, the references
teach “the phosphorescent material in a density corresponding to the desired
optical transmittance and emission” as claim 11 requires.
In other words, the references teach phosphorescent light sources
having a desired visibility, thereby implying a density of phosphorescent
material corresponding to a “desired” transmittance and emission. For
example, common knowledge, see KSR, 550 U.S. at 421, indicates that zero
or minimal density (i.e., no or minimal phosphorescent material)
corresponds to zero or minimal visibility, and hence, zero or minimal
transmittance and emission. Accordingly, we will sustain the Examiner’s
rejection of claim 11, and claims 12 and 17, which were not separately
argued.
Claim 20
Appellant argues that “there is absolutely no reason” to cut Logan’s
phosphorescent material in the shape of the word “EXIT” (App. Br. 7, 8), as
proposed by the Examiner. However, the Examiner also alternatively
reasoned and found (Ans. 8) that “clearly the phosphorescent material is
distributed so that it glows through the cut out of Logan forming the exit
sign.” Appellant does not rebut the Examiner’s finding, supported by the
record (see FF 3-5). Claim 20 requires “wherein the phosphorescent
material is distributed on the substrate to provide useful indicia during dark
conditions.” Thus, as the Examiner reasoned, claim 20 does not require
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cutting Logan’s phosphorescent material. Rather, Logan’s evenly
distributed material 19 provides useful indicia by emanating through the
“EXIT” cut outs in the front face 12 of cover 11 (see FF 3-5), thereby
meeting claim 20.
Claim 6
Appellant argues (App. Br. 8) that “[i]t would not be obvious, nor
even possible to combine [Weidenbach’s] glow in the dark blind with an exit
sign.” However, Weidenbach’s transparent blind (see FF 10), in
combination with Koide, teaches the limitations of claim 6 with or without
Logan. That is, Weidenbach teaches a P/L material (i.e., a passive
phosphorescent material) on a light passing substrate positioned between a
primary light source of sunlight and a viewing environment (FF 10). Koide
teaches the optical transmittance of 50% for a substrate, as discussed above.
Further, as the Examiner reasoned (Ans. 5), employing sunlight as the
primary light source in Logan’s exit sign would have saved energy. While
Appellant argues that Logan’s exit sign would not work because the “passive
light source would probably wear off well before morning” (App. Br. 8)
(emphasis added), the argument lacks a factual foundation and also implies
the light would work for at least some time. Logan also explicitly teaches
using sunlight to charge the passive secondary layer 19 (FF 3). Modifying
Logan’s sign position or construction to render the phosphorescent substrate
19 (and/or clear substrate 20) between the sun and a viewing environment
would have been obvious in view of Weidenbach, to save energy and
activate the luminescent material, as the Examiner reasoned (Ans. 5).

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Claims 7-9
Either Koide’s, Logan’s, or Weidenbach’s phosphorescent-carrying
transparent or light passing plastic substrates 2, 20, or 13, respectively,
constitute, or at a minimum, suggest (FF 4, 6, 9, 10), “a clear polymer film”
as claim 7 requires.6 Appellant argues that light does not pass through these
layers (App. Br. 9). The argument is not persuasive based on the findings
above with respect to claims 1 and 6, and based on the teachings in the
references, as just described, that light passes through these substrate layers.
Accordingly, we will sustain the Examiner’s rejection of claim 7, and
claims 8-9, which depend from claim 7, were not separately argued, and thus
fall with claim 7.
Claims 13-15 and 18
Appellant challenges (App. Br. 9) the Examiner’s finding (Ans. 6)
that Wetzel’s teaching of a coating of phosphorescent material surrounding
the lamp, in combination with Logan and Koide, suggests the limitations of
claim 13.7 Claim 13 recites, in pertinent part, “wherein the primary lighting
source comprises lighting components and wherein the substrate is an
envelope that surrounds the lighting components.” Appellant argues (App.
Br. 9) that “in Logan (and Koide), the phosphoescent-carryng substrate is the
primary light source and thus it cannot surround itself.”

6 Appellant groups claims 7-9 together (App. Br. 8, 9). Accordingly, claim 7
is selected to represent the group. See 37 C.F.R. § 41.37(c)(1)(vii).
7 Appellant groups these claims together but only presents arguments for
claims 13-15 as a group, without presenting any argument for claim 18
(App. Br. 9). Accordingly, claim 13 is selected to represent claims 13-15.
Appellant fails to demonstrate error and waives any argument with respect to
claim 18. See 37 C.F.R. § 41.37(c)(1)(vii).
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Appellant’s argument, similar to the argument addressed above with
respect to claim 1, mischaracterizes the Examiner’s position. As stated
above, the Examiner found that Logan’s primary light source 18 (not the
passive phosphorescent-carrying substrate 19 and/or 20) constitutes the
primary light/lighting source referenced in claims 1 and 13 (see FF 4; Ans.
3, 4, 7-9).8 As such, Logan’s substrate portions 19 and/or 20, depicted as
larger in perimeter than primary lighting source layer 18, reasonably
constitute, or suggest with Wetzel’s teachings, an envelope surrounding
Logan’s primary lighting components 25, 50 of primary lighting source 18
(see FF 4) for reasons set forth by the Examiner, and as explained further
below.
Assuming arguendo that claim 13 may require a phosphorescent-
carrying substrate envelope to surround primary lighting components on
more than one side (i.e., in a three dimensional fashion) as Wetzel teaches
(see FF 11), Logan’s cover 11, comprising flanges 16, does so surround all
internal lighting components (FF 4). Further, Logan’s cover 11, panel 17,
and sheet 20, as a substrate unit, completely surrounds and protects the
primary lighting components 18 and/or 21 on all six sides (see FF 4; see also
Logan, Figs. 1, 3, 5, 6).
Wetzel discloses a similar lamp housing cover 30 having two main
parts – a bottom housing portion surface 31 and clear lens cover 33. The
bottom portion comprises a phosphorescent portion on surface 31, which
surrounds a lamp 20 (FF 11). As such, considering the enveloping

8 Claim 13 recites the “primary lighting source” but depends from claim 1,
which recites “the primary light source”; therefore, the two sources are
deemed to be the same source.
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phosphorescent-carrying substrate of Wetzel to comprise substrate portion
31 (and/or lens 33) “carrying” the passive phosphorescent material and
surrounding the primary lighting components 22 (see FF 11), or similarly,
considering the enveloping substrate of Logan to comprise portions of 11,
17, 19, and/or 20 “carrying” the passive phosphorescent material in or on
layer 19 and surrounding the primary lighting components 18 and/or 21,
suggests the substrate envelope of claim 13.
In other words, Wetzel’s combined substrate layer 31 and
phosphorescent material, with Koide’s combined layers 1 and 2, reasonably
suggest a similar combined layer of at least layers 19 and 20 in Logan
having transparent substrate portions. The combined teachings suggest
forming Logan’s layer 19 (and/or the layers 19 and 20 together as one layer)
as an envelope shaped substrate having flanges generally conforming to the
inside of Logan’s flange shaped cover 11 (see FF 4). Thus, the Examiner’s
rationale (see Ans. 6) of eliminating or combining support layers for the
phosphorescent material 19 and also, surrounding and enveloping Logan’s
primary light source components (i.e., 18/21/25/50 (see FF 4)) with the
combined substrate, as Wetzel and Koide suggest, to enhance light glow as
Wetzel teaches (FF 11), amounts to “some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.” See
KSR, 550 U.S. at 418. Further, eliminating Logan’s cover 11 and forming
an enveloping substrate cover out of Logan’s sheet 19 and/or sheets 19 and
20 to provide light without indicia as Wetzel and Koide teach also would
have been obvious and saved material generally as the Examiner proposed,
while providing light.
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Appellant has not presented evidence or argument to show that the
modification of Logan using the teachings of Koide and Wetzel would have
been “uniquely challenging or difficult for one of ordinary skill in the art” or
“represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007).
Accordingly, we will sustain the Examiner’s rejection of claim 13,
and claims 14, 15, and 18 not separately argued.

CONCLUSION
Appellant did not show that the Examiner erred in finding that Logan
and Koide collectively teach: 1) a phosphorescent-carrying substrate having
a transmittance of 50% or higher as claim 1 requires; 2) the substrate
emission rate as claim 2 requires; 3) “the phosphorescent material in a
density corresponding to the desired optical transmittance and emission” as
claim 11 requires; and 4) “wherein the phosphorescent material is distributed
on the substrate to provide useful indicia during dark conditions” as claim 20
requires. Second, Appellant also did not show that the Examiner erred in
finding that Logan, Koide, and Weidenbach collectively teach 1) a primary
light source of sunlight as claim 6 requires; and 2) “wherein the substrate is
a clear polymer film” as claim 7 requires. Finally, Appellant did not show
that the Examiner erred in finding that Logan, Koide, and Wetzel
collectively teach “wherein the substrate is an envelope that surrounds the
lighting components” as claim 13 requires.

DECISION
We affirm the Examiner’s decision rejecting claims 1-20.
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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. § 1.136(a)(1)(iv).

AFFIRMED

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Cynthia S. Murphy
Renner, Otto, Boisselle & Sklar, LLP
Nineteenth Floor
1621 Euclid Avenue
Cleveland,OH 44115