APPLE INC.

Patent Trials and Appeals Board

Jan 3, 2022

2021002501 (P.T.A.B. Jan. 3, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/841,345 12/14/2017 Arnaud Laflaquière P33946US1/1020-1187.1 1713 123590 7590 01/03/2022 KLIGLER & ASSOCIATES PATENT ATTORNEYS LTD. P.O. BOX 57651 TEL AVIV, 61576 ISRAEL EXAMINER KING, JOSHUA ART UNIT PAPER NUMBER 2828 NOTIFICATION DATE DELIVERY MODE 01/03/2022 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): INFO@DKPAT.CO.IL alon@dkpat.co.il daniel@dkpat.co.il PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ARNAUD LAFLAQUIÈRE, MARC DRADER, and CHRISTOPHE VÉROVE Appeal 2021-002501 Application 15/841,345 Technology Center 2800 Before JEFFREY B. ROBERTSON, BRIAN D. RANGE, and DEBRA L. DENNETT, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision to reject claims 1, 2, 5-9, 15-21, and 23.2 Appeal Br. 4. We have jurisdiction under 35 U.S.C. § 6(b). 1 This Decision includes citations to the following documents: Specification filed December 14, 2017 (“Spec.”); Non-Final Office Action entered December 27, 2019 (“Non-Final Act.”); Appeal Brief filed March 19, 2020 (“Appeal Br.”); Examiner’s Answer entered February 1, 2021 (“Ans.”), and Reply Brief filed February 25, 2021 (“Reply Br.”). 2 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Apple, Inc. as the real party in interest. Appeal Br. 1. Appeal 2021-002501 Application 15/841,345 2 We AFFIRM-IN-PART. CLAIMED SUBJECT MATTER Appellant states the invention relates to optoelectronic devices and their manufacture. Spec. 1. Claim 1, reproduced below, is illustrative of the claimed subject matter (Appeal Br. 20, Claims App.): 1. An optoelectronic device, comprising: a semiconductor substrate; a first set of epitaxial layers formed on an area of the substrate defining a lower distributed Bragg-reflector (DBR) stack; a second set of epitaxial layers formed over the first set, defining a quantum well structure; a third set of epitaxial layers, formed over the second set, defining an upper DBR stack, wherein at least the third set of epitaxial layers is contained in a mesa having sides that are perpendicular to the epitaxial layers; a confinement layer formed within the third set of epitaxial layers, the confinement layer comprising: a central part comprising a semiconducting material; and a peripheral part surrounding the central part and comprising a dielectric material; a dielectric coating extending over the sides of the mesa from an upper surface of the mesa and terminating at the confinement layer so as to cover all of the epitaxial layers that are above the confinement layer; and electrodes coupled to the epitaxial layers so as to apply an excitation current to the quantum well structure. Appeal 2021-002501 Application 15/841,345 3 Claim 15 is also independent and recites a method for manufacturing an optoelectronic device. Id. at 21-22. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Yoo et al. (“Yoo”) US 2002/0075922 A1 June 20, 2002 Song et al. (“Song”) US 2004/0099857 A1 May 27, 2004 McHugo US 2006/0013276 A1 Jan. 19, 2006 Lin et al. (“Lin”) US 2007/0091961 A1 Apr. 26, 2007 Yoshikawa et al. (“Yoshikawa”) US 2011/0182314 A1 July 28, 2011 Wang et al. (“Wang”) US 2015/0255955 A1 Sept. 10, 2015 REJECTIONS 1. Claims 1, 2, 5-7, and 9 are rejected under 35 U.S.C. § 103 as being unpatentable over McHugo and Lin. Non-Final Act. 7-9. 2. Claims 8 and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over McHugo, Lin, and Song. Non-Final Act. 10- 11. 3. Claims 15 and 16 are rejected under 35 U.S.C. § 103 as being unpatentable over Wang and Lin. Non-Final Act. 11-13. 4. Claim 17 is rejected under 35 U.S.C. § 103 as being unpatentable over Wang, Lin, and McHugo. Non- Final Act. 13. Appeal 2021-002501 Application 15/841,345 4 5. Claims 18 and 19 are rejected under 35 U.S.C. § 103 as being unpatentable over Wang, Lin, Yoo, and Yoshikawa. Non- Final Act. 14-15. 6. Claim 20 is rejected under 35 U.S.C. § 103 as being unpatentable over Wang, Lin, and Yoo. Non-Final Act. 15-16. 7. Claim 23 is rejected under 35 U.S.C. § 103 as being unpatentable over Wang, Lin, Yoo, Yoshikawa, and Song. Non-Final Act. 16. OPINION Rejection 1 We limit our discussion to claim 1, which is sufficient for disposition of this rejection. The Examiner’s Rejection In rejecting claim 1 as obvious over McHugo and Lin, the Examiner found McHugo discloses an optoelectronic device including, inter alia, a dielectric coating extending over the sides of a mesa so as to cover all of the epitaxial layers that are above the confinement layer. Non-Final Act. 7-8. The Examiner found McHugo does not disclose the dielectric coating terminates at the confinement layer. Id. at 8. The Examiner found Lin discloses forming a dielectric coating to within +/- one DBR mirror layer of the current confinement layer and that the number of oxidized DBR layers should be minimized to avoid DBR oxide stress. Id. The Examiner determined that it would have been obvious to have modified McHugo with the dielectric coating layer terminating at the confinement in view of the teachings in Lin. Id. Alternatively, the Examiner determined it would have Appeal 2021-002501 Application 15/841,345 5 been obvious to have optimized the number of layers covered by the dielectric coating to terminate the dielectric coating at the confinement layer because Lin discloses stopping at a positon above the confinement layer and because Lin provides reasoning why it would be desirable to minimize the number of unwanted oxidized layers to avoid DBR oxide stress. Id. Appellant’s Arguments Appellant argues, inter alia, that McHugo discloses a protective layer that extends past the layer the Examiner identified as the confinement layer, and that the protective layer is formed only after oxidation of the confinement layer has been completed. Appeal Br. 8. Appellant contends that it would not have been obvious to optimize McHugo in view of Lin to arrive at the solution recited in claim 1 without the benefit of improper hindsight. Id. at 10. Discussion We are persuaded by Appellant’s argument. That is, both of the rationales offered by the Examiner for combining McHugo and Lin are based on modifying McHugo’s thin layer 250 (dielectric layer) to terminate at McHugo’s aluminum rich layer 214 (confinement layer) to minimize or avoid unwanted oxidized layers to avoid DBR oxide stress. Non-Final Act. 8. However, McHugo discloses the thin protective layer 250 is deposited as a protective layer after the edge of aluminum-rich layer 214 is oxidized. McHugo ¶¶ 24-26. Thus, the Examiner’s reasoning is not based on sufficient rational underpinnings, because modifying the thin layer 250 of McHugo such that it Appeal 2021-002501 Application 15/841,345 6 terminates at the confinement layer would not avoid unwanted oxidized layers during the oxidation process disclosed in McHugo. “‘[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’” KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Accordingly, we reverse the Examiner’s rejection of claim 1, as well as, dependent claims 2, 5-7, and 9. Rejection 2 Claims 8 and 21, the subject of Rejection 2, both are dependent from claim 1. The Examiner’s additional reliance on Song does not remedy the deficiencies discussed above with respect to McHugo and Lin. See Non- Final Act. 10-11. Accordingly, we reverse Rejection 2 for similar reasons as discussed above with respect to claim 1. Rejection 3 Appellant presents separate arguments with respect to claims 15 and 16 subject to this rejection. See Appeal Br. 14-18. Accordingly we select claims 15 and 16 as representative for disposition of this rejection. 37 C.F.R. § 41.37(c)(1)(iv)(2019). Claim 15 The Examiner’s Rejection In rejecting claim 15 as obvious over Wang and Lin, the Examiner found Wang discloses a method for manufacturing an optoelectronic device Appeal 2021-002501 Application 15/841,345 7 having DBR stacks and a confinement layer, but Wang does not disclose, inter alia, a confinement layer is within the upper DBR stack or coating the sides of a mesa with a dielectric coating. Non-Final Act. 11. The Examiner found Lin discloses a confinement layer in the upper DBR stack. Id. at 11. The Examiner found Lin discloses etching to within +/- one DBR layer of the confinement layer in order to oxidize only the desired layers of the DBR. Id. at 12. The Examiner found Lin discloses coating the sides of a mesa with a dielectric coating. Id. at 11-12. The Examiner determined it would have been obvious to have modified Wang with the confinement layer in the upper DBR stack, etch the mesa to +/- one DBR of the confinement layer, and to coat the sides of the mesa with a dielectric coating as disclosed in Lin to oxidize only the desired layers of the DBR and minimize oxide stress. Id. at 12. Alternatively, the Examiner determined it would have been obvious to modify Wang in view of Lin to optimize the number of layers covered by the dielectric coating such that the coating terminated at the confinement layer, because Lin provides reasoning as to why it would be desirable to minimize the number of unwanted oxidized layers to avoid DBR oxide stress. Id. The Examiner further reasoned that the optimizing would be to balance the cost of manufacturing with the desired reduction of dark line defects based on the intended use of the laser (more critical uses). Id. Appellant’s Arguments Appellant argues Lin does not disclose the dielectric layer terminates at the confinement layer, but rather Lin discloses reducing the number of mirror layers that are oxidized where the method does not cover all of the DBR mirror layers down to the current confinement layer. Appeal Br. 15- Appeal 2021-002501 Application 15/841,345 8 16. Appellant contends that Lin’s process of dry etching is not completely accurate, and is stopped many layers above the confinement layer. Id. at 16. Appellant argues that there is a contradiction in the Examiner’s optimization rationale, because Lin is directed to a different problem than the solution in claim 15, such that the Examiner’s rationale is based on hindsight. Id. Discussion We are not persuaded by Appellant’s arguments. Lin discloses that in methods of making vertical cavity surface emitting lasers (VCSELs) including current confinement layers, the oxidation procedures used create dark line defects (DLDs) at the edge of the DBR mirror layers. Lin ¶¶ 1-4. Lin discloses etched walls of the laterally oxidized VCSEL structure are coated with a conformal dielectric film that significantly reduces the number of mirror layers that are oxidized. Id. at ¶ 5. Before applying the dielectric film, Lin first etches the VCSEL structure creating sidewalls 210. Id. at ¶ 9; Figs. 2a-2d. Lin discloses “the dry etch is typically stopped above the current confinement layer 290.” Lin ¶ 10 (emphasis added). Lin discloses “an end-point system can be used to count the number of DBR pairs of DBRs 230 and determine when the dry etch is to be stopped, typically within ±1 DBR mirror layer.” Id. Lin then discloses different systems or methods that may be used to control the extent of the etching and the etching stop point. Id. Although we agree with Appellant that Lin’s disclosure of “within ±1 DBR mirror layer” with respect to the etch stop does not necessarily mean the etch terminates “at the confinement layer” as recited in claim 15, we do not view this as a basis for reversible error. That is, we are of the view that Appeal 2021-002501 Application 15/841,345 9 the Examiner’s position that it would have been obvious to one of ordinary skill in the art to have optimized the etching procedure to terminate at the confinement layer is sufficiently supported. As discussed above, Lin discloses problems with DLDs caused by unwanted oxidizing of DBR layers. We understand that Lin discloses etching to above the confinement layer reduces, but does not eliminate, all oxidation of the DBR layers. Lin ¶¶ 5, 14. However, we are of the view that this express discussion in Lin supports the Examiner’s position that for more critical applications, one of ordinary skill in the art would have modified the etching procedure disclosed in Lin to terminate at the confinement layer to prevent more unwanted oxidation of the DBR layers. Non-Final Act. 12. Moreover, arguments of counsel cannot take the place of factually supported objective evidence. In re Huang, 100 F.3d 135, 139-40 (Fed. Cir. 1996). Here, Appellant has not provided any particular evidence to support the position that Lin’s procedures are incapable of etching to the confinement layer. Appeal Br. 15-16; Reply Br. 3-4. As discussed above, Lin discloses that “typically” dry etching is stopped above the confinement layer, and therefore does not impose a definitive limit for stopping the etch. In addition, Lin discloses multiple techniques to provide for stopping the etch. Lin ¶ 10. Thus, absent objective evidence to the contrary, we are not persuaded by Appellant’s argument that the particular procedures discussed in Lin would have been incapable of etching to the confinement layer, or that one of ordinary skill in the art would have been incapable of modifying the etching procedure to provide etching to the confinement layer. Accordingly, we affirm the Examiner’s rejection of claim 15. Appeal 2021-002501 Application 15/841,345 10 Claim 16 Claim 16 depends from claim 15, and further recites “wherein the semiconductor material comprises AlxGa1-x0As, wherein x does not exceed 0.92.” Appeal Br. 22. The Examiner found Lin discloses AlGaAs layers with Al concentration from 0.86 to 0.9 and that the precise concentration may be adjusted based on intended use. Non-Final Act. 12, citing Lin ¶¶1, 3. The Examiner found that Wang in view of Lin does not explicitly disclose the Al concentration does not exceed 0.92 as recited in claim 16. Id. at 12-13. The Examiner took Official Notice that current confinement layers with Al concentrations lower than 0.92 are well known in the art. Id., citing Jewell (US 7,215,692 B2 issued May 8, 2007, “Jewell”), col. 7, ll. 37-46 and Wipiejewski (US 6,317,446 B1, “Wipiejewski”), col. 3, ll. 35-36. The Examiner determined it would have been obvious to have modified the Al concentration of the semiconductor material making up the confinement layer to adjust the refractive index and/or oxidation rate of the current confinement layer. Id. Appellant contends the portions of Lin cited by the Examiner do not disclose optimizing Al content, and Jewell and Wipiejewski do not disclose confinement layers with the required Al content in claim 16. Appeal Br. 17- 18, see Appeal Br. 12; Reply Br. 4-5. We are not persuaded by Appellant’s arguments. In particular, Lin discloses the Al content in DBR layers varies in wide ranges. Lin ¶ 1. The Examiner’s position is supported by the additional citations to Jewell and Wipiejewski. Ans. 7-9. In this regard, Wipiejewski discloses Al content in such layers varies from greater than 0.8 to less than or equal to 1, noting that Appeal 2021-002501 Application 15/841,345 11 the higher the Al content, the higher the oxidation rate. Wipiejewski, col. 3, ll. 35-40. Thus, the Examiner’s position that the Al content of the confinement layers is a result effective variable and would include situations where the Al content does not exceed 0.92 is sufficiently supported by the record. Although Appellant contends Jewell and Wipiejewski do not disclose confinement layers (see Reply Br. 5), Appellant does not specifically address the Examiner’s findings, supported with specific citation to both Jewell and Wipiejewski. Ans. 8-9. Accordingly, we affirm the Examiner’s rejection of claim 16. Rejection 4 - Claim 17 Claim 17 depends from claim 15, and recites “wherein the thickness of the confinement layer exceeds 50 nm.” Appeal Br. 22. The Examiner found Wang in view of Lin do not explicitly disclose the recited thickness. Non-Final Act. 13. The Examiner found McHugo discloses the thickness of the confinement layer exceeds 50 nm. Id. The Examiner determined it would have been obvious to have modified Wang in view of Lin such that the thickness of the confinement layer exceeds 50 nm as disclosed in McHugo in order to use a layer of the DBR mirror as a current confinement layer. Id. Appellant contends, inter alia, that McHugo’s reference to thickness does not relate to the aluminum rich layer 214 (the confinement layer) or that a layer of the DBR mirror could serve as a confinement layer. Appeal Br. 18-19. Appeal 2021-002501 Application 15/841,345 12 We agree with Appellant in this regard. McHugo discloses specific differences between aluminum rich layer 214 and other layers of the mirror stack 210. McHugo ¶ 18; Fig. 2. Thus, even assuming the Examiner’s calculations regarding the thicknesses of the layers in McHugo are correct (see Ans. 11), we are of the view the Examiner has not provided sufficient support for the position that the aluminum rich layer 214 disclosed in McHugo would have a thickness exceeding 50 nm as recited in claim 17. See Appeal Br. 13. As a result, we reverse the Examiner’s rejection of claim 17. Rejections 5-7 Claims 18, 19, 20, and 23, the subject of Rejections 5-7, depend either directly or indirectly from claim 15. Appellant does not provide separate arguments with respect to these rejections or claims. See Appeal Br. 14-19. Accordingly, we affirm Rejections 5-7 for similar reasons as discussed above with respect to Rejection 3 and claim 15. Appeal 2021-002501 Application 15/841,345 13 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 5-7, 9 103 McHugo, Lin 1, 2, 5-7, 9 8, 21 103 McHugo, Lin, Song 8, 21 15, 16 103 Wang, Lin 15, 16 17 103 Wang, Lin, McHugo 17 18, 19 103 Wang, Lin, Yoo, Yoshikawa 18, 19 20 103 Wang, Lin, Yoo 20 23 103 Wang, Lin, Yoo, Yoshikawa, Song 23 Overall Outcome 15, 16, 18-20, 23 1, 2, 5-9, 17, 21 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART