APPOTRONICS CHINA CORPORATION

Patent Trials and Appeals Board

Dec 7, 2021

2021000094 (P.T.A.B. Dec. 7, 2021)

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.
15/313,497 11/22/2016 Qian LI 79592.0075 4501
53720 7590 12/07/2021
Chen Yoshimura LLP
Attention Ying Chen
PO Box 70127
Sunnyvale, CA 94087
EXAMINER
HUANG, CHENG YUAN
ART UNIT PAPER NUMBER
1787
NOTIFICATION DATE DELIVERY MODE
12/07/2021 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):
miwa@cyiplaw.com
ychen@cyiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte QIAN LI, YANZHENG XU, ZIFENG TIAN, and YUSAN CHEN
Appeal 2021-000094
Application 15/313,497
Technology Center 1700
Before CATHERINE Q. TIMM, DONNA M. PRAISS, and
DEBRA L. DENNETT, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 5–10, and 13–18. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Appotronics Corporation Limited.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a wavelength conversion device. The
device includes a reflective layer that contains: (1) 0.5–30 mass% aluminum
oxide reflective particles of 0.02–0.7 µm diameter; (2) 40–75 mass%
titanium oxide auxiliary particles of 0.2–0.5 µm diameter; and (3) binder.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A wavelength conversion device, comprising a
substrate, a reflective layer, and a light emitting layer stacked
successively,
wherein the reflective layer contains reflective particles,
auxiliary particles, and a first binder, the reflective particles
reflecting light, the auxiliary particles filling voids between the
reflective particles, and the first binder binding the reflective
particles and the auxiliary particles to form the layer,
wherein the reflective particles are aluminum oxide
particles and the auxiliary particles are titanium oxide particles,
wherein a mass fraction of the titanium oxide particles in the
reflective layer is 40–75% and a mass fraction of the aluminum
oxide particles in the reflective layer is 0.5–30%, and wherein a
particle diameter of the titanium oxide particles is 0.2–0.5 μm
and a particle diameter of the aluminum oxide particles is 0.02–
0.7 μm, and
wherein the light emitting layer contains a wavelength
conversion material and a second binder.
Appeal Br. 9 (Claims Appendix).
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REJECTIONS
Claims 1, 5–8, 10, 13, and 15 are rejected under 35 U.S.C. § 103 as
being unpatentable over Li (CN 203489180, issued March 19, 2014)2 in
view of Washizu (WO 2014/017108 A1, published Jan. 30, 2014).3 Final
Act. 3.
Claim 9 is rejected under 35 U.S.C. § 103 as being unpatentable over
Li in view of Washizu, and further in view of Hebrink (US 2013/186466 A1,
published July 25, 2013). Final Act. 9.
Claims 14 and 16–18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Li in view of Washizu, and further in view of Okaniwa
(US 2013/0328149 A1, published Dec. 12, 2013). Final Act. 10.
OPINION
Appellant’s arguments focus on the Examiner’s rejection of claim 1.
Appeal Br. 3–7. Thus, in deciding the issue on appeal we also focus on the
rejection of claim 1. We fashion the issues as: (1) whether Appellant has
identified a reversible error in the Examiner’s finding that Li and Washizu
suggest selecting aluminum oxide and titanium oxide in amounts within
claim 1’s mass fraction ranges for use as a mixture of scattering particles in
a diffusion reflection layer; and, if so, (2) whether Appellant has identified a
reversible error in the Examiner’s determination that Appellant’s evidence of
criticality fails to meet the burden for showing unexpected results that

2 We rely on the figures of the Chinese document Appellant filed January
19, 2017, and the machine translation the Examiner entered October 11,
2018.
3 We rely on and cite to US 2015/0162511 A1, which the Examiner states,
without objection by Appellant, is the English equivalent.
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support a conclusion of nonobviousness based on the totality of the
evidence.
Appellant has not identified such errors.
There is no dispute that Li teaches a wavelength conversion device
including a substrate on which is successively stacked a reflective layer and
a light emitting layer. Compare Final Act. 3, with Appeal Br. 3–7. Li’s
embodiment 3 uses a diffuse reflection layer including white scattering
particles that function to scatter incident light. Li 12. Claim 1 requires a
mixture of aluminum oxide and titanium oxide particles. There is no dispute
that Li discloses both of these oxides as useful for the light scattering
function. Li 12; Appeal Br. 4. Nor is there any dispute that Li teaches
particle sizes of 50 nanometers to 5 micrometers (0.05–5 µm), a range that
overlaps claim 1’s ranges. Compare Final Act. 3, with Appeal Br. 3–7.
Appellant contends that the prior art combination does not teach the
specific aluminum oxide and titanium oxide mixture in the mass fractions
required by claim 1. Appeal Br. 4, 6–7. Further Appellant contends that this
specific combination is critical. Appeal Br. 4–6. We do not find these
contentions persuasive for the reasons provided by the Examiner in the
Answer. We add the following primarily for emphasis.
Although it is true that Li does not specifically suggest using
aluminum oxide and titanium oxide together, Li’s list of scattering particles
includes both and “[i]t is prima facie obvious to combine two compositions
each of which is taught by the prior art to be useful for the same purpose, in
order to form a third composition which is to be used for the very same
purpose.” In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980). We, like the
Examiner, disagree with Appellant’s contention (Appeal Br. 4) that Li’s list
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is so large that it fails to suggest the mixture of the two specifically listed
oxides. Ans. 13.
Once one of ordinary skill in the art selected the known scattering
particles, aluminum oxide and titanium oxide, for use together, the ordinary
artisan would have conducted routine experimentation to obtain the
workable or optimal amounts for achieving the desired light scattering. Li
discloses that particle size, the thickness of the layer, and the density
amongst other things “can be obtained by a number of experiments by those
skilled in the art according to the prior art.” Li 12–13.
Li does not provide any specific guidance on what amounts would
have been arrived at so the Examiner turns to Washizu. Washizu, like Li,
teaches a reflection layer including light diffusion particles and binder.
Washizu ¶¶ 57, 81. Like Li, Washizu is concerned with achieving high
reflectivity. Li 12; Washizu ¶ 81. Further like Li, Washizu discloses that
aluminum oxide and titanium oxide, amongst others, can serve as light
diffusion particles along with mixtures of two or more types of light
diffusion particles. Washizu ¶ 82. Washizu suggests using 60–95 mass%
light diffusion particles to obtain sufficient reflectivity and binding strength.
Washizu ¶ 84. This suggests that the ordinary artisan would have selected
similar amounts for use in Li’s reflective layer to obtain workable or optimal
reflectivity while also including enough binder to provide the necessary
strength.
Neither Li nor Washizu disclose concentration ranges for individual
light scattering particles in mixture, but that does not foreclose a conclusion
of obviousness. This is because the ordinary artisan would have found it
obvious to use any workable or optimal combination of concentrations that
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would achieve the reflectivity, strength, density, and thickness properties
disclosed as result effective by the references. Li 12–13; Washizu ¶ 84. See
In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“where the general conditions
of a claim are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation.”).
It is by now well settled that where patentability is predicated upon a
change in a condition of a prior art composition, such as a change in
concentration or the like, the burden is on the applicant to establish with
objective evidence that the change is critical, i.e., it leads to a new,
unexpected result. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); In
re Aller, 220 F.2d 454, 456 (CCPA 1955). This is usually done “‘by
showing that the claimed range achieves unexpected results relative to the
prior art range.’” In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)
(quoting In re Geisler, 116 F.3d 1465, 1469–70 (Fed. Cir. 1997)) (alteration
in original).
Appellant relies on passages on pages 5 through 7 of the Specification
to support a showing of unexpected results. Appeal Br. 4–6. But, as pointed
out by the Examiner, those portions of the Specification do not include any
experimental data. Ans. 16. These portions of the Specification merely make
unsupported statements about the results without data. Unsupported
statements in the specification, without more, cannot support a finding of
unexpected results. Tyco Healthcare Group LP v. Mut. Pharm. Co., Inc., 642
F.3d 1370, 1377 (Fed. Cir. 2011).
In fact, the Specification does not even state that the results were
unexpected or surprising, it only states that the resulting reflectivity layer
has various properties including “superior reflectivity and relatively thin
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thickness.” Spec. 7:1–2. “[A]ny superior property must be unexpected to be
considered as evidence of non-obviousness.” Pfizer, Inc. v. Apotex, Inc.,
480 F.3d 1348, 1371 (Fed. Cir. 2007). Just because a property is “superior”
does not necessarily mean it was unexpected.
We agree with the Examiner that, based on the totality of the
evidence, there is no showing of unexpected results that overcomes the
prima face case of obvious.
CONCLUSION
The Examiner’s decision to reject claims 1, 5–10, and 13–18 is
affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 5–8, 10,
13, 15
103 Li, Washizu 1, 5–8, 10,
13, 15

9 103 Li, Washizu,
Hebrink
9
14, 16–18 103 Li, Washizu,
Okaniwa
14, 16–18
Overall
Outcome
1, 5–10, 13–
18

TIME PERIOD FOR RESPONSE
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