Ex Parte Wei et al

Patent Trial and Appeal Board

Sep 20, 2018

13980387 (P.T.A.B. Sep. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/980,387 10/07/2013
24252 7590
OSRAM SYLVANIA Inc.
200 Ballardvale Street
Wilmington, MA 01887
09/20/2018
FIRST NAMED INVENTOR
George C. Wei
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 OP20664WOUS 7698
EXAMINER
CATTANACH, COLIN J
ART UNIT PAPER NUMBER
2875
MAIL DATE DELIVERY MODE
09/20/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEORGE C. WEI, MADIS RAUKAS,
ADAM M. SCOTCH, and DARSHAN KUNDALIY A
Appeal2018-000300
Application 13/980,387
Technology Center 2800
Before ADRIENE LEPIANE HANLON, ROMULO H. DELMENDO, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-6, 9, and 10. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
Independent claim 1 is generally illustrative of the subject matter on
appeal and is reproduced below:
1. A luminescent converter for a light emitting diode, the
converter comprising: a translucent substrate and a thin-film
layer deposited on the substrate, wherein the thin-film layer
comprises a phosphor and wherein said thin-film layer is a layer
of a film that is continuous within its boundaries, has a
substantially homo gen[ e ]ous composition and a thickness of less
Appeal2018-000300
Application 13/980,387
than twenty micrometers; said thin-film layer not comprising
films or layers comprised of particulate materials that may or
may not be bound together by an organic material or sintered
together to form a solid monolithic piece.
Appellants 1 (see generally Br.) request review of the following
rejections from the Examiner's Final Office Action:
I. Claims 1 and 2 rejected under pre-AIA 35 U.S.C. § 102(a) as
anticipated by Lee (US 2010/0284166 Al, published November 11, 2010).
II. Claims 1-5, 9, and 10 rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Nakamura (US 2009/0212697 Al, published
August 27, 2009) and Lee. 2
III. Claim 6 rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Nakamura, Lee, and Menkara (US 2005/0023963 Al,
published February 3, 2005).
OPINION
The Prior Art Rejections
Rejection under pre-AJA 35 US.C. § 102(a)
Appellants only argue independent claim 1 and does not present
arguments for claim 2. See generally Br. Accordingly, we select
independent claim 1 as representative of the subject matter before us on
appeal for this rejection.
After review of the respective positions provided by Appellants and
the Examiner, we affirm the Examiner's rejection of claims 1 and 2 under 35
1 OSRAM SYLVANIA Inc. is identified as the real party in interest. Br. 2.
2 For brevity, we group all rejections Nakamura and Lee (see Final Act. 3, 5,
9) as a single rejection.
2
Appeal2018-000300
Application 13/980,387
U.S.C. § 102(a) for the reasons presented by the Examiner. We add the
following for emphasis.
Independent claim 1 is directed to a luminescent converter for a light
emitting diode comprising a thin-film phosphor layer having a substantially
homogeneous composition.
The Examiner finds Lee discloses a luminescent converter comprising
a thin-film phosphor layer that anticipates the claimed invention. Final Act.
2-3; Lee Fig. 14, ,r,r 63, 81, 100.
Appellants argue that Lee's use of a diffusion process means that the
thin-film phosphor is not substantially homogeneous throughout the layer.
Br. 4. Appellants contend that Lee specifically states that "[t]he fabricated
thin-film phosphor has a constitutional composition continuously varied to
gradually come close to a constitutional composition of the substrate." Br. 4
(internal citation and quotation marks omitted); Lee ,r,r 80, 100, 110.
We are unpersuaded by these arguments for the reasons presented by
the Examiner. Ans. 3--4. As explained by the Examiner, Lee's Figure 14
discloses a thin-film phosphor layer expressed as the "depth from the surface
of thin film phosphor" that has a constitutional composition that is
substantially homogeneous throughout the layer depth-wise up to a thickness
of about 600 nm. Ans. 3 (internal citation and quotation marks omitted);
Lee ,r 100. While Appellants argue that Lee's Figure 14 is not evidence of a
substantially homogeneous composition, Appellants do not direct us to any
definition of "substantially homogeneous" in the Specification that is
contrary to the broadest reasonable interpretation such that the phrase
excludes a thin-film phosphor layer as described by Lee.
3
Appeal2018-000300
Application 13/980,387
We also note that, given that no Reply Brief was filed, Appellants do
not provide further arguments contesting the Examiner's finding that Lee
discloses a thin-film phosphor layer that is substantially homogeneous
throughout the layer, as shown in the reference's Figure 14.
Accordingly, we affirm the Examiner's rejection of claims 1 and 2
under 35 U.S.C. § 102(a) for the reasons given by the Examiner and
presented above.
Rejections under pre-AJA 35 USC§ 103(a)
We have reviewed the respective positions provided by Appellants
and the Examiner for the rejections under 35 U.S.C. § 103(a). Having found
Appellants' arguments unpersuasive as to the rejection of claim 13 under 35
U.S.C. § 102(a) over Lee, we, likewise, do not find Appellants' arguments
persuasive regarding the rejections of claims 1-6, 9, and 10 over the
combined teachings of the Nakamura, Lee, and Menkara. For the reasons
presented by the Examiner and given above, we also uphold the obviousness
rejections because anticipation is the epitome or ultimate of obviousness.
See, e.g., In re Fracalossi, 681 F.2d 792, 794 (CCPA 1982).
DECISION
The Examiner's prior art rejections of claims 1---6, 9, and 10 are
affirmed.
3 Appellants rely principally on the arguments presented when discussing the
anticipation rejection to address all claims rejected under obviousness. Br.
4--5. Accordingly, we limit our discussion to claim 1 as representative of
subject matter before us for review on appeal for these rejections.
4
Appeal2018-000300
Application 13/980,387
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
5