Ex parte Hikmet et al.

Board of Patent Appeals and Interferences

Aug 13, 1998

08080891 (B.P.A.I. Aug. 13, 1998)

Application for patent filed June 22, 1993.1
Final Office action, paper No. 9. 2
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 22
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte RIFAT A.M. HIKMET,
WILLEM G. OPHEY and JOSEPHUS J.M. BRAAT
_____________
Appeal No. 96-1368
Application 08/080,8911
______________
ON BRIEF
_______________
Before MARTIN, BARRETT, and TORCZON, Administrative Patent
Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the
examiner's final rejection of claims 1-16. The examiner's2
Appeal No. 96-1368
Application 08/080,891
Inasmuch as the Answer does not include a rejection of3
dependent claims 4, 9, 10, 12, and 15, these claims are
presumably objected to for depending from rejected claims.
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Answer indicates (at 1) that claims 7 and 8 are allowed and
(at 2) that several grounds of rejection applied to claims 1-
16 have been rendered moot by the abandonment of Appellants'
Application 08/074,179. Although the Answer states that the
appeal now involves claims 1-6 and 9-16, the only claims which
stand rejected in the Answer are claims 1-3, 5, 6, 11, 13, 14,
and 16, which are rejected under 35 U.S.C. § 103 for
obviousness over the prior art. We affirm.3
The invention is a polarization-sensitive beam splitter
as defined in claim 1, which reads as follows:
1. A polarization-sensitive beam splitter comprising at
least one transparent wedge-shaped element of a birefringent
material, characterized in that the wedge-shaped element
comprises a polymerized uniaxially oriented liquid crystalline
monomer composition.
Appellants' Figures 6 and 7 show two embodiments of
Wollaston prisms using such wedge-shaped elements.
The references relied on by the examiner are:
Rogers et al. (Rogers) 4,525,413 Jun. 25, 1985
Takayanagi et al. 4,810,433 Mar. 7, 1989
(Takayanagi)
Appeal No. 96-1368
Application 08/080,891
The first-named inventor is actually Broer. We will4
refer to this reference as De Vaan to be consistent with the
examiner and Appellant.
The level of skill in the art is represented by the5
references. In re Oelrich, 579 F.2d 86, 91, 198 USPQ 210, 214
(CCPA 1978) ("the PTO usually must evaluate both the scope and
content of the prior art and the level of ordinary skill
solely on the cold words of the literature"). In re GPAC
Inc., 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir.
1995)(Board did not err in adopting the approach that the
level of skill in the art was best determined by the
references of record).
Although this rejection is described as based on Rogers6
in view of Tatsuno (final Office action at 7; Answer at 6), it
is apparent from the discussion of the rejection that these
references are relied on in combination with Takayanagi.
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Tatsuno et al. (Tatsuno) 4,822,151 Apr. 18, 1989
Iwanaga et al. (Iwanaga) 4,951,274 Aug. 21, 1990
De Vaan et al. (De Vaan) 0 428 213 A1 May 22, 19914
(European Patent Office)
Murty et al. (Murty), Liquid Crystal Wedge as a Polarizing
Element and Its Use in Shearing Interferometry, 19 Optical
Engineering 113-15 (Jan./Feb. 1980).
The references have been applied against the claims as
follows:5
(a) Claim 1: Rogers in view of Takayanagi;
(b) Claims 2, 3, 5, and 11: Rogers in view of Takayanagi
and Tatsuno; 6
Appeal No. 96-1368
Application 08/080,891
The last Office action (paper No. 9, at 5) and the7
Answer (at 5) incorrectly state that this rejection is based
on Rogers in view of Takayanagi, repeating the stated ground
for the first rejection of claim 1 under 35 U.S.C. § 103
(Answer at 3; final Office action at 3). However, it is
apparent from the discussion of the references that the second
rejection of claim 1 is based on Murty in view of De Vaan.
This is also apparent from the fact that claims 2, 3, 5, and
11 are rejected as unpatentable over Murty and De Vaan, as
applied to claim 1, further in view of Tatsuno (Final Office
action at 6; Answer at 6).
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(c) Claim 1: Murty in view of De Vaan;7
(d) Claims 2, 3, 5, and 11: Murty in view of De Vaan and
Tatsuno;
(e) Claim 6: Iwanaga in view of Murty, Rogers, and De
Vaan; and
(f) Claims 13, 14, and 16: Iwanaga in view of Murty,
Rogers, De Vaan, and Tatsuno.
1. The rejections based on Rogers
Rogers discloses molecularly highly birefringent polymer
material for making a variety of optical devices, including
the beam splitter shown in Figure 8 and a Wollaston prism
(col. 30, lines 56-57). However, as Appellants note, the
examiner is incorrect to state that Rogers suggests forming
the birefringent polymer material into a wedge-shaped element.
Appeal No. 96-1368
Application 08/080,891
Element 72b is incorrectly labeled 72 in the figure.8
The birefringent polymer material used in the other9
disclosed embodiments is likewise in the form of a layer or
film. Specifically, in the light polarizing sheet shown in
Figure 5, the birefringent material is in the form of a
lenticular layer 16 between isotropic layers 14 and 18 (col.
25, lines 7-11 and 38-44). In the headlamp of Figure 6, a
prismatic birefringent polymer layer 42 abuts a prismatic
isotropic layer 44 (col. 28, lines 1-6). Figure 7 shows a
multilayer polarizing sheet 50 having alternating layers of
birefringent polymer material 54 and isotropic material 56
(col. 28, lines 35-38).
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Instead, the birefringent polymer material in Figure 8 is
layer 74, which is located between elements 72a and 72b,8
which are formed of glass or other isotropic material (col.
30, lines 18-25). This is consistent with Rogers's statement
that "[t]he polymeric materials utilized in the devices of the
present invention can be variously formed or shaped into
films, sheets, coatings, layers, fibrils, fibers or the like"
(col. 21, lines 3-6). As a result, Rogers's suggestion of9
using polymeric birefringent material in a Wollaston prism
(col. 30, lines 39-60) appears to be a suggestion to use a
layer of such material between isotropic wedge-shaped
elements. Rogers also fails to disclose that the birefringent
Appeal No. 96-1368
Application 08/080,891
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polymer material can be in the form of a liquid crystal
monomer, as is necessary to satisfy claim 1.
Takayanagi discloses a process for producing from two or
more liquid crystal monomers a highly uniaxially oriented film
that is free from pinholes, strain or unevenness and is
excellent in optical transparency (Abstract). Among the uses
for these films are as phase contrast films or polarizing
films dyed with dichromatic dyes, and optical filters (col. 1,
lines 7-16). In the "Example" described at column 13, line 61
to column 14, line 19, a mixture of two liquid crystal
monomers identified as 5H and 6H (synthesized in the manner
described in col. 12, line 66 to col. 13, line 59) is
supported between two glass plates and exposed to heat and
light to cause it to polymerize, after which the glass plates
are removed to obtain a birefringent film. The examiner
contends it would have been obvious to employ such a film in
the device of Rogers for the benefit of the advantages of
being free from pinholes, strain or unevenness and excellence
in optical transparency. Assuming for the sake of argument
that it would have been obvious for these reasons to replace
the birefringent polymer material in Rogers's Figure 8 beam
Appeal No. 96-1368
Application 08/080,891
MBBA is N-(p-Methoxy Bezylidene)-p-Butyl Aniline)10
(Murty at 113 n.*).
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splitter or Wollaston prism with Takayanagi's polymerized
liquid crystal material, the result would be a film of
polymerized liquid crystal material formed on or between one
or more wedge-shaped isotropic elements, not a wedge-shaped
element formed of polymerized liquid crystal material, as
required to satisfy claim 1. For this reason, the rejection
of claim 1 as unpatentable for obviousness over Rogers in view
of Takayanagi is reversed.
Tatsuno, which is additionally relied on with respect to
dependent claims 2, 3, 5, and 11 as showing a Wollaston prism
23 including three wedge-shaped elements 24-26, does not cure
the above-noted deficiency. As a result, the rejection of
those dependent claims as unpatentable for obviousness over
Rogers in view of Takayanagi and Tatsuno is also reversed.
2. The rejections based on Murty
Murty discloses a liquid crystal wedge which is formed by
encapsulating a liquid crystal material such as MBBA in a10
wedge-type cell (Abstract) formed between two glass plates.
The glass plates are rubbed parallel to the apex of the wedge
Appeal No. 96-1368
Application 08/080,891
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before the liquid crystal material is introduced into the cell
(Murty at 1). After a while, the liquid crystal material
starts crystallizing and when the crystallization is complete,
it acts like a polarizing prism (id.). The resulting cell can
be used to separate two orthogonally polarized component of a
light beam and in this sense is equivalent to a Rochon or
Wollaston prism (id.). Murty does not disclose the use of a
polymerized liquid crystal material.
De Vaan describes a different type of prior art liquid
crystal beam splitter, its associated problems, and the
objects of his invention as follows (col. 1, lines 10 to 51):
According to the state of the art a
polarisation-sensitive beam splitter can be
manufactured in the form of a Wollaston
prism as described in McGraw-Hill
Encyclopedia of Science and Technology,
vol. 10, page 499 (1960). To avoid the use
of birefringent prisms, a polarisation-
separating layer which is interposed
between two transparent elements can be
used in known manner, said elements may be
composed of ordinary glass or of a
synthetic resin having the same single
refractive index, see United States Patent
Specification US 4,702,557. In said
specification, the polarisation-separating
birefringent layer consists of a liquid-
crystalline layer having a thickness of 5
to 10 Fm. One of the refractive indices of
said layer must be equal to the refractive
Appeal No. 96-1368
Application 08/080,891
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index of said elements and the other
refractive index must be smaller than the
refractive index of said elements.
According to the state of the art, a
thin liquid-crystalline layer is applied
between two substrates (the transparent
elements) by means of capillary forces.
Means for sealing the thin layer from the
environment must be provided. Further, it
is necessary to position and secure the two
substrates at a fixed distance from each
other. A further disadvantage of the known
devices is the difficulty of providing
suitable liquid-crystalline materials
having the above-described refractive
indices. Moreover, the temperature
resistance of liquid-crystalline layers is
generally small.
One of the objects of the invention is
to provide a polarisation-sensitive beam
splitter of a simpler construction. In
this connection an object of the invention
is to provide means to atune the refractive
indices of the polarisation-separating
layer and the transparent elements to each
other in a simple manner. Another object
of the invention is to provide a beam
splitter which is little temperature
dependent and which is also temperature
resistant. Yet another object of the
invention is to provide a simple and
efficacious method of manufacturing a
polarisation-sensitive beam splitter.
Specifically, De Vaan uses as the birefringent layer a
"curable synthetic resin composition which comprises liquid-
crystalline monomers or oligomers, the molecules in the
Appeal No. 96-1368
Application 08/080,891
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curable synthetic resin composition being uniaxially oriented
after which the synthetic resin composition is cured" (col. 2,
lines 22-27). Figure 1 shows a polarization-sensitive beam
splitter 10 which is composed of two glass prisms 11 and 12
separated by a birefringent adhesive layer 13, whose molecules
are uniaxially oriented in the direction perpendicular to the
direction of the drawing (col. 3, line 51 to col. 4, line 6).
The examiner also asserts, and Appellants do not dispute,
it was known in the art that a cured liquid crystal
composition has the advantages of requiring no support
substrates and being stable (final Office action at 6: Answer
at 5).
With respect to claim 1, the examiner contends it would
have been obvious to replace the uncured liquid crystal
material in Murty's polarization device with a cured (i.e.,
polymerized) liquid crystal monomer composition of the type
disclosed by De Vaan in order to obtain "the benefits of
temperature independence, not requiring supporting substrates
and being stable" (Answer at 5). We additionally note that
using a polymerized liquid crystal material apparently will
also avoid another problem discussed by De Vaan, which is the
Appeal No. 96-1368
Application 08/080,891
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need to seal the liquid crystal material from the environment.
Appellants have not specifically addressed the rejection
of claim 1 over Murty in view of De Vaan. The only rejections
they discuss that are based on Murty are the rejection of
dependent claims 2, 3, 5, and 11 over Murty in view of De Vaan
and Tatsuno (Brief at 8-9) and the rejection of dependent
claim 6 over Iwanaga in view of Murty, Rogers, and De Vaan
(Brief at 10-11). However, in discussing those claims
Appellants make one argument that is also applicable to
claim 1, which is that Murty's liquid crystal material "is not
polymerized [n]or is it uniaxially oriented" and that the De
Vaan patent fails to cure this deficiency because its wedge-
shaped elements are formed of glass rather than of an oriented
polymerized liquid crystal monomer (Brief at 9). This
argument fails because it is well settled that a rejection
based on a plurality of references cannot be overcome by
attacking the references individually; the test for combining
references is not what individual references themselves
suggest but rather what the combination of disclosures taken
as a whole would suggest to one of ordinary skill in the art.
Appeal No. 96-1368
Application 08/080,891
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In re Merck, 800 F.2d 1091, 1097, 231 USPQ 375, 380 (Fed. Cir.
1986) (citing In re Keller, 642 F.2d 413, 425, 208 USPQ 871,
881 (CCPA 1981)). As Appellants have failed to explain why
the artisan would not have been motivated to combine the
reference teachings in the manner proposed by the examiner, we
are affirming the rejection of claim 1 as unpatentable for
obviousness over Murty in view of De Vaan.
Turning now to the rejection of claims 2, 3, 5, and 11
over Murty in view of De Vaan and Tatsuno, the examiner,
noting that Tatsuno discloses a three-wedge Wollaston beam
splitter (Fig. 4) that can deflect an incident beam under
larger angles than a two-component Wollaston prism (col. 6,
lines 47-58), contends it would have been obvious to employ
the device of Murty as modified in view of De Vaan as the
wedge-shaped elements in Tatsuno's three-wedge Wollaston prism
in order to produce a beam splitter that permits the incident
beams to have large angles. We also note, as mentioned
previously, that Murty (at 113, 2d col.) explains his wedge-
shaped liquid crystal cell is equivalent to a Wollaston prism.
Appellants respond to this rejection with the argument
discussed above in connection with claim 1, i.e., that Murty's
Appeal No. 96-1368
Application 08/080,891
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liquid crystal material is not polymerized or uniaxially
oriented and that the De Vaan patent fails to cure this
deficiency because its wedge-shaped elements are formed of
glass rather than of an oriented polymerized liquid crystal
monomer (Brief at 9). Again, this argument is unconvincing
because it fails to address the collective teachings of those
references. Furthermore, Appellants' additional argument that
the Tatsuno patent fails to disclose or suggest making its
wedge-shaped elements of a uniaxially oriented polymerized
crystalline monomer composition is unresponsive to the
rejection, which relies collectively on only Murty and De Vaan
for this teaching. We note that Appellants do not contend
that in the event Murty and De Vaan do collectively teach
wedge-shaped elements of such material, it nevertheless would
have been unobvious to use such material to form the wedge-
shaped elements in Tatsuno's three-wedge Wollaston prism.
For the foregoing reasons, the rejection of claims 2, 3,
5, and 11 as unpatentable for obviousness over Murty in view
of De Vaan and Tatsuno is affirmed.
Appeal No. 96-1368
Application 08/080,891
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3. The rejections based on Iwanaga
Claim 6, which depends on claim 1, stands rejected under
§ 103 as unpatentable for obviousness over Iwanaga in view of
Murty, Rogers, and De Vaan. Claim 6 recites a device which
includes a light source for supplying a scanning beam, an
optical system for directing the scanning beam onto an
information plane of a record carrier, a photosensitive
detection system in the path of the scanning beam from the
record carrier, and a polarization-sensitive beam splitter as
claimed in claim 1 arranged in the path before the detection
system. Figure 6 of Iwanaga shows a device including all of
these elements except for a beam splitter that satisfies claim
1: a source 1 for generating a scanning laser beam, optical
elements 2, 4 and 5 for directing the laser beam to the
recording medium 6, a photodetectors 11 for receiving laser
light from the recording medium, and a polarization-sensitive
beam splitter 19 (a Wollaston prism) in the light path leading
to the photodetectors. The wedge-shaped elements of Iwanaga's
Wollaston prism are made of crystal (col. 5, lines 34-35)
rather than a polymerized liquid crystal monomer.
Appeal No. 96-1368
Application 08/080,891
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The examiner cites Rogers (col. 1, lines 9-21) as
evidence that birefringent crystals suitable for use in
Wollaston prisms are expensive to make and contends that with
this fact in mind it would have been obvious in view of Murty
and De Vaan to replace Iwanaga's crystal Wollaston elements
with elements made of a polymerized liquid crystal monomer
"for the benefit of avoiding the cost of a birefringent
crystal" (Answer at 8). Appellants respond by arguing that
Iwanaga, like each of the other cited references, fails to
suggest forming a beam splitter of transparent wedge-shaped
polymers formed of polymerized uniaxially oriented liquid
crystalline monomer material. This argument fails to address
the collective teachings of the references and is also
unresponsive to the rejection, which relies collectively on
Rogers, Murty, and De Vaan for this teaching. We note
Appellants do not argue that in the event Rogers, Murty, and
De Vaan collectively teach wedge-shaped elements of
polymerized uniaxially oriented liquid crystalline monomer
material, it nevertheless would have been unobvious to use
such material to make the wedge-shaped elements in Iwanaga's
Wollaston prism 10 (Fig. 4). The rejection of claim 6 for
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Application 08/080,891
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obviousness over Iwanaga in view of Murty, Rogers, and De Vaan
is therefore affirmed.
In rejecting dependent claims 13, 14, and 16 for
obviousness over Iwanaga in view of Murty, Rogers, De Vaan,
and Tatsuno, the examiner contends, as he did with respect to
claims 2, 3, 5, and 11, that it would have been obvious to
employ the device of Murty as modified in view of De Vaan as
the wedge-shaped elements in Tatsuno's three-wedge Wollaston
prism in order to produce a beam splitter that permits the
incident beams to have large angles. With respect to this
rejection, Appellants rely on the arguments made with respect
to the claims on which they depend (i.e., claims 1-3 and 5,
which arguments we considered unpersuasive for the reasons
given supra. The rejection of claims 13, 14, and 16 for
obviousness over Iwanaga in view of Murty, Rogers, De Vaan,
and Tatsuno is therefore affirmed.
4. Summary
The following § 103 rejections have been reversed:
(a) the rejection of claim 1 based on Rogers in view of
Takayanagi; and
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Application 08/080,891
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(b) the rejection of claims 2, 3, 5, and 11 based on
Rogers in view of Takayanagi and Tatsuno.
The following § 103 rejections have been affirmed:
(i) the rejection of claim 1 based on Murty in view of De
Vaan;
(ii) the rejection of claims 2, 3, 5, and 11 based on
Murty in view of De Vaan and Tatsuno;
(iii) the rejection of claim 6 based on Iwanaga in view
of Murty, Rogers, and De Vaan; and
(iv) the rejection of claims 13, 14, and 16 based on
Iwanaga in view of Murty, Rogers, De Vaan, and Tatsuno.
Appeal No. 96-1368
Application 08/080,891
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
)
JOHN C. MARTIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LEE E. BARRETT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
RICHARD L. TORCZON, JR. )
Administrative Patent Judge )
Appeal No. 96-1368
Application 08/080,891
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U.S. PHILIPS CORPORATION
Corporate Patent Counsel
580 White Plains Road
Tarrytown, NY 10591
Appeal No. 96-1368
Application 08/080,891
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