Ex Parte VASYLYEV

Patent Trial and Appeal Board

Nov 16, 2018

14639083 (P.T.A.B. Nov. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/639,083 03/04/2015
25945 7590
SERGIY VASYLYEV
3204 East Pintail Way
ELK GROVE, CA 95757
11/20/2018
FIRST NAMED INVENTOR
SERGIY VASYLYEV
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.
4100
EXAMINER
SANTIAGO, MARICELI
ART UNIT PAPER NUMBER
2879
NOTIFICATION DATE DELIVERY MODE
11/20/2018 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):
svasilyev@yahoo.com
svasylyev@svvti.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SERGIY V ASYL YEV
Appeal2018-000940
Application 14/639,083 1
Technology Center 2800
Before CATHERINE Q. TIMM, JEFFREYB. ROBERTSON, and
SHELDON M. McGEE, Administrative Patent Judges.
McGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant seeks our review of the
Examiner's rejections of claims 1-17. Br. 6.
We have jurisdiction. 35 U.S.C. § 6.
We affirm.
1 Appellant identifies SVV TECHNOLOGY INNOVATIONS INC. (DBA
LUCENT OPTICS) as the real party in interest. Br. 3.
Appeal2018-000940
Application 14/639,083
BACKGROUND
The subject matter on appeal is directed to light directing films used to
redirect light. Spec. ,r 6.
Figure 2 illustrates the claimed subject matter of sole independent
claim 1 and is copied below from Appellant's Specification:
4
FIG. 2
·to J.
\
102
Figure 2 "depicts a schematic cross-section of a portion of light
directing film 2." Spec. i-f52.
Sole independent claim 1 is illustrative of the appealed subject matter,
and is copied below from the Claims Appendix to the Appeal Brief, with
emphasis added to the limitation central to this appeal:
1. A light directing structure defined by two opposing broad-area
surfaces, comprising:
a first layer [ 4] of an optically transmissive solid material
having a first refractive index;
a second layer [ 6] of an optically transmissive solid
material having a second refractive index different than the first
refractive index; and
a corrugated optical interface [20] formed between said
first and second layers and characterized by a stepped change in
a refractive index,
2
Appeal2018-000940
Application 14/639,083
wherein said corrugated optical interface comprises a
plurality of facets [24, 26] adjacent to each other and forming
different dihedral angles between 0° and 90° with respect to a
prevailing plane of said first layer, wherein at least one of said
facets is configured to redirect light by means of at least
refraction or a total internal reflection.
Br. 11 (emphasis added).
REJECTIONS
I. Claims 1-10, 13, 14, 16, and 17 are rejected under 35 U.S.C.
§ I02(b) as anticipated by Hatazawa. 2 Final 2-5.
II. Claims 1-3, 5-8, 10-12, 14, 15, and 17 are rejected under
35 U.S.C. § I02(b) as anticipated by Okabe. 3 Final 5---6.
III. Claim 15 is rejected under 35 U.S.C. § I03(a) as unpatentable
over Hatazawa. Final 7.
OPINION
Appellant focuses its argument on a single limitation appearing in
independent claim 1. Br. 6-8. Thus, the anticipation rejection of dependent
claims 2-10, 13, 14, 16, and 17 over Hatazawa stands or falls with our
disposition of independent claim 1 over Hatazawa. 3 7 C.F .R.
§ 4I.37(c)(l)(iv). Similarly, the anticipation rejection of dependent claims
2, 3, 5-8, 10-12, 14, 15, and 17 over Okabe, stands or falls with our
disposition of the anticipation rejection of independent claim 1 over Okabe.
Id. We address the anticipation rejections together because Appellant
presents the same argument for each anticipation rejection. Br. 6-8.
2 US 6,239,851 Bl, issued May 29, 2001.
3 US 6,545,827 Bl, issued April 8, 2003.
3
Appeal2018-000940
Application 14/639,083
Claim 1
The rejections of claim 1 tum on the broadest reasonable construction
of the term "between." Namely, the dispositive issue is whether the
Examiner's construction of the recited phrase "angles between 0° and 90°
with respect to a prevailing plane of said first layer" - which includes the
endpoints of 0° and 90° - is unreasonably broad in light of the
specification. Based on our review of the appeal record, we determine that
the Examiner's claim construction is not unreasonably broad, and thus
affirm each of the anticipation rejections of claim 1. Our reasoning follows.
The Examiner finds that each of Hatazawa and Okabe discloses a light
directing structure that meets the disputed limitation recited in claim 1.
Final 2-3, 5. Specifically, the Examiner finds that Hatazawa's structure has
"adjacent facets [] positioned at two different angles, 90° and at less than 90°
due to the facets forming an inequilateral triangle, with respect to the
prevailing plane of the first layer." Final 2 (citing Fig. 17). Similarly, the
Examiner finds that Okabe' s structure represented in Figure 10 evinces the
recited "dihedral angles between 0° and 90° with respect to a prevailing
plane of said first layer." Final 5.
Appellant's sole argument is that the structures disclosed in Hatazawa
and Okabe do not anticipate claim 1 because the Examiner applied the
wrong claim construction to the term "between." Br. 6-8. Namely,
Appellant urges that the Examiner should have applied the "ordinary and
customary meaning of the word 'between"' which dictates that the phrase
"between 0° and 90°" excludes the endpoints, leaving only angles "greater
than 0° and less than 90°." Br. 6, 7. Appellant relies on extrinsic evidence
to support its position. Id. at 6.
4
Appeal2018-000940
Application 14/639,083
In response, the Examiner points to Appellant's Figure 2 and finds
that facets 24 and 26 are "adjacent to each other and form[] different
dihedral angles ( angle 62 and an angle of 90°) with respect to a prevailing
plane of' the first layer. Ans. 6 ( emphasis added). Significantly, this
finding goes uncontested by Appellant, i.e., no Reply Brief was filed.
During examination, "the PTO must give claims their broadest
reasonable construction consistent with the specification." In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (emphasis
added). While the use of extrinsic dictionary definitions - such as those
provided by Appellant (Br. 6) - is appropriate in some circumstances, such
extrinsic evidence should not be relied upon to the exclusion of intrinsic
evidence, e.g., the Specification itself. Rather, "[s]uch intrinsic evidence is
the most significant source of the legally operative meaning of disputed
claim language." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
(Fed. Cir. 1996). "[T]he specification is always highly relevant to the claim
construction analysis. Usually, it is dispositive; it is the single best guide to
the meaning of a disputed term." Id. In fact, it has been held that "[i]n most
situations, an analysis of the intrinsic evidence alone will resolve any
ambiguity in a disputed claim term. In such circumstances, it is improper to
rely on extrinsic evidence." Vitronics, 90 F.3d at 1583.
That is precisely the case here. The Examiner undisputedly finds that
the Figure 2 embodiment contained in Appellant's Specification includes
two "facets [24, 26] adjacent to each other and forming different dihedral
angles" - of which one is a 90° angle - to the prevailing plane of a first
layer. Ans. 6. Therefore, it is reasonable for the Examiner to construe the
phrase "plurality of facets adjacent to each other and forming different
5
Appeal2018-000940
Application 14/639,083
dihedral angles between 0° and 90° with respect to a prevailing plane of said
first layer" as including the 90° endpoint.
For these reasons, and those provided by the Examiner, Appellant has
failed to identify reversible error in the Examiner's anticipation rejections of
claim 1 over Hatazawa and Okabe. We, therefore, sustain the Examiner's
anticipation rejections of claim 1, as well as the anticipation rejections of
claims 2-17 not separately argued.
Claim 15
Claim 15 depends from claim 1 and additionally requires "the lower
of the two refractive indices of said first and second layers [ to be] less than
1.49." Br. 12.
We begin by observing that our affirmance of the anticipation
rejection of claim 15, supra, compels us to conclude that claim 15 is also
obvious, for "[i]t is well settled that 'anticipation is the epitome of
obviousness."' In re McDaniel, 293 F.3d 1379, 1385 (Fed. Cir. 2002)
(quoting Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed. Cir.
1983) ). However, the anticipation rejection of claim 15 sustained above
involves Okabe, not Hatazawa as relied on by the Examiner. Final 7.
Appellant argues that Hatazawa does not disclose the limitation
requiring the lower refractive index to be "less than 1.49 ." Br. 10. This
argument is unpersuasive, however, for the well-stated reasons given by the
Examiner in the Answer, unaddressed by Appellant. Ans. 6.
We, therefore, sustain the Examiner's obviousness rejection of claim
15 over Hatazawa.
6
Appeal2018-000940
Application 14/639,083
DECISION
The Examiner's final decision to reject claims 1-17 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
7