Ex Parte 6134092 et al

Patent Trial and Appeal Board

Feb 25, 2014

90012051 (P.T.A.B. Feb. 25, 2014)

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.
90/012,051 12/15/2011 6134092 11694.0012-00000 9471
7470 7590 02/25/2014
WHITE & CASE LLP
PATENT DEPARTMENT
1155 AVENUE OF THE AMERICAS
NEW YORK, NY 10036
EXAMINER
PROCTOR, JASON SCOTT
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
02/25/2014 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
____________________

In re CHIMEI INNOLUX CORP.

____________________

Appeal 2014-001748
Control No. 90/012,051
Technology Center 3900
____________________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

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Control No. 90/012,051

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 17
and 20-22. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to
An illumination device comprises a waveguide having a
peripheral edge. A series of point light sources are mounted in
spaced relationship adjacent a peripheral portion of the
waveguide. A series of diffusive reflective surfaces, preferably
formed by posts, are disposed adjacent the peripheral portion of
the waveguide, between pairs of the point light sources. The
diffusive reflective surfaces are oriented relative to the series of
point light sources and the waveguide so as to introduce light
into regions of the waveguide between pairs of the point light
sources, whereby the peripheral portion of the waveguide is
substantially uniformly illuminated.

(Abstract).

Claim 17, reproduced below, is representative of the claimed subject
matter:
17. An illumination device, comprising:
an optical cavity having an output aperture;
a series of diffusive reflective optical cavities each
substantially smaller than said optical cavity and having an exit
mouth disposed along a side of said optical cavity;

a series of point sources of light mounted to emit light
into said series of diffusive reflective optical cavities,
respectively, whereby light is injected from said exit mouths
into a peripheral portion of said optical cavity.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Brownlee US 4,963,933 Oct. 16, 1990
Gleckman US 6,043,591 Mar.28, 2000

REJECTIONS
The Examiner made the following rejections:
Claims 17, 20, and 21 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Brownlee.
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being obvious
over Brownlee in view of Gleckman.
Appellants seek our review of the above rejections.

The Examiner withdrew the following rejections made in the final
rejection:
Claims 1, 5, 7, 12, 16, 18, 26, 29, and 30-34 under 35 U.S.C. § 102(b)
as anticipated by Brownlee.
Claims 8 and 11 under 35 U.S.C. § 103(a) as being obvious over
Brownlee in view of Gleckman.
Claims 6, 15, and 27 under 35 U.S.C. § 103(a) as being obvious over
Brownlee in view of Hochstein.
Claims 1, 5, 7, 12, 16, 17, 18, 20, 21, 26, 29, and 30-34 under 35
U.S.C. § 103(a) as being obvious over JP '873 in view of JP '130.
Claims 8, 11, and 22 under 35 U.S.C. § 103(a) as being obvious over
JP '873 in view of JP '130 and Gleckman.
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Claims 6, 15, and 27 under 35 U.S.C. § 103(a) as being obvious over
JP '873 in view of JP '130 and Hochstein.
The Examiner previously withdrew the following rejections made in
the non-final rejection. These rejections were withdrawn by the Examiner in
the final rejection:
Claims 1, 5, 7, 12, 16, 17, 18, 20, 21, 26, and 29under 35 U.S.C.
§ 102(b) as anticipated by JP ‘130.
Claims 8, 11, and 22 under 35 U.S.C. § 103(a) as being obvious over
JP ‘130 in view of Gleckman.
Claims 6, 15, and 27 under 35 U.S.C. § 103(a) as being obvious over
JP ‘130 in view of Hochstein

ANALYSIS
The Examiner has limited the rejections on review to the rejection of
independent claims 17 and 21 and dependent claim 20 based upon 35 U.S.C.
§ 102 based upon the Brownlee reference. The Examiner has further
rejected dependent claim 22 based upon 35 U.S.C. § 103(a) based upon the
Brownlee reference in view of the Gleckman reference.

Appellants present a wide array of arguments directed to all of the
independent claims previously rejected as being anticipated by Brownlee.
Since the Examiner has withdrawn numerous rejections and limited the
review of the rejection to claims of 17, 20, and 21, we note that a number of
Appellants' arguments are inapplicable to the present claim language of
representative independent claim 17. Therefore, we will address Appellants'
arguments as they correspond to language of independent claim 17, which
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we select as the representative claim for the grouping. Based on Appellants’
arguments in the Brief, we decide the appeal on the basis of representative
claim 17. See 37 C.F.R. § 41.37(c)(1)(vii).

Anticipation
Appellants main contention is that the Examiner must use the
"broadest reasonable interpretation consistent with the specification" (App.
Br. 7), and Appellants contend the Examiner has not done so. Appellants
contend the Examiner has taken an unreasonably broad interpretation of the
claim term "diffusive reflective." (App. Br. 7). Appellants present two
declarations of Dr. Pochi Yeh. (Appeal Brief, Evidence Appendix). Dr.
Yeh has stated:
The Brownlee reference discloses that the surface of the
die for injection molding the plate for reflecting light towards
the other end of the cavity is "highly polished" for producing
the highly polished surface of the reflective curved walls.
Brownlee, col. 5:34-40. Highly-polished reflective white plastic
surfaces or highly-polished surfaces metallized to enhance
reflection are very smooth and provide specular reflections of
inbound light rays. See Brownlee, col. 8:65-67 (describing
materials of the reflective surfaces). Such surfaces will not
diffusively reflect light and therefore such surfaces are not
diffusive reflective surfaces.

(Yeh Second Decl. ¶ 5). Appellants contend that these surfaces would not
provide diffusive reflections of inbound light rays over a range of angles in
accordance with the Specification of the ' 092 patent. (App. Br. 8). Rather,
we find the surfaces of the cavity are described merely as "polished," and the
die for injection molding the cavity is described as "highly polished."
(Brownlee, col. 5:34-36). We find the "smooth, white plastic surface
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provides excellent reflection of the light" (Brownlee, col. 5:37-38), which
may produce both specular and diffusive reflective light.
We find Dr. Yeh's conclusions to be based upon a mis-description of
the express teachings of the Brownlee reference. Dr. Yeh states the "highly
polished reflective white plastic surfaces," but the Brownlee reference states
that the die is "highly polished" and that the white plastic is merely
"polished." (Brownlee, col. 5:34-36). Therefore, the level of reflection and
diffraction may be different than with a "highly polished plastic surface"
versus a "polished" plastic surface. Moreover, the Brownlee reference
expressly teaches adding to the polished plastic surface. The Brownlee
reference states "[r]eflectivity may be enhanced, if desired, by metallizing
such surfaces." (Brownlee 40-41). We find this to suggest that the polished
plastic surface is less than optimal which is suggestive of a combination of
specular and diffusive reflections. If more optimal specular reflection were
desired, then the highly polished surface with metallization would be
desirable.
Appellants further contend that "The collimation disclosed by
Brownlee is consistent with the surfaces being specular reflective, highly-
polished white plastic surfaces, because diffusive reflective surfaces scatter
light rather than collimating it. Yeh Second Decl. ¶¶ 3-4." (App. Br. 9).
We disagree with Appellants' conclusion and find that the language of
independent claim 17 merely sets forth "a series of diffusive reflective
optical cavities" rather than "diffusive reflective surfaces." The two
declarations mainly address the claim language "diffusive reflective
surfaces" and do not provide as in-depth discussions with respect to the
language of independent claims 17 and 21. Therefore, we find the
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declarations do not show error in the Examiner's finding of anticipation of
representative claim 17.

The Examiner maintains that Dr. Yeh's declarations nor Appellants
arguments set forth any specific percentages with which to appropriately
define where reflected light changes from being "specular" to "diffusive"
light. (Ans. 10-11). While Dr. Yeh's second Decl. (P. 1-2) attempts to
differentiate a diffusive reflective surface and specular reflective surface, we
note Figure 13 of the ' 092 patent shows both types of reflections without
any clarifications in the Specification. Appellants' Specification sets forth:

The top surface 57 of the planar member 56 and the side
surfaces 65 of the guide members 60 are comprised of a
material which diffusively reflects light impinging thereon. In
one embodiment, the top surface 57 of the planar member 56
and the side surfaces 65 of the guide members 60 are coated
with a diffusive reflective material. Alternately, the planar
member 56 and guide members 60 may be manufactured of a
diffusive reflective material. In either case, the top surface 57
and the side surfaces 65 preferably have a reflectivity of at least
90%. More preferably, the top surface 57 and the side surfaces
65 have a reflectivity of at least 94% and, most preferably, the
reflectivity of the surfaces 57 and 65 is at least 99%.

The diffusive reflective material on the top surface 57
and the side surfaces 65 may comprise a coating of one or more
layers of diffusely reflective tape, such as DRP
TM
Backlight
Reflector, manufactured by W. L. Gore & Associates. DRP
TM

Backlight Reflector has a reflectivity of approximately 97%-
99.5%, depending on the thickness of the material and the
wavelength of the light. Alternatively, the reflective material
could comprise a paint or coating that is applied to the top
surface 57 and the side surfaces 65, such as white house paint
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or a more exotic material, such as the Labsphere Corporation's
Spectraflect paint. Spectraflect paint's reflectivity is
considerably higher than house paint, roughly 98%, while the
reflectivity of a good white house paint is approximately 90%.
As mentioned, the planar member 56 and the guide members 60
may also be manufactured of a diffusive reflective material,
such as, for example, cycolac, which is manufactured by
General Electric. Cycolac has a reflectivity of approximately
94%.

(Spec., col. 4: 24-54). We note that the Specification generally discloses a
diffusive material which is placed on the top surface rather than the optical
cavity itself being diffusive reflective. The claim further recites "exit mouth
disposed along a side of said optical cavity" rather than along the top
surface. Therefore, we are unsure how Appellants' arguments with respect
to the "surfaces" of independent claim 1 would apply to the language of
independent claim 17. We find Appellants' arguments to diffusive reflective
surfaces to be unpersuasive with respect to diffusive reflective optical
cavities, as generally argued. (App. Br. 10). See 37 C.F.R. § 41.37(c)(vii)
(“A statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.”). See also
In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“we hold that the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.”).
We agree with the Examiner's findings of anticipation and adopt the
Examiner's findings and conclusions as set forth in the statement of the
rejection and the responsive arguments as our own. (Ans. 2- 6, 9-17).
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With respect to Appellants' arguments regarding "waveguide," the
Examiner's Answer has withdrawn rejections to claims that expressly recite
"waveguide". The Examiner maintains that these arguments do not traverse
the rejection of independent claims 17 and 21. (Ans. 13). We agree with the
Examiner.
With regards to the recited "exit mouth" and "entry mouth,"
Appellants contend that the Examiner has misinterpreted and read out these
claim terms. (App. Br. 13-14). The Examiner clarifies the interpretation in
the Examiner's Answer. We agree with the Examiner's clarification. (See
generally Ans. 13-17). We note that Appellants have not submitted a Reply
Brief to further address the Examiner's clarification. Therefore, Appellants
have waived arguments to the Examiner's clarification. Therefore,
Appellants' argument does not show error in the Examiner's interpretation.
Since we found each of Appellants' arguments unpersuasive of error in the
Examiner's s finding of anticipation, we will sustain the rejection of
independent claims 17 and 21 and dependent claim 18 which is grouped
with claim 17. See 37 C.F.R. § 41.37(c)(vii).

Obviousness
We agree with the Examiner's conclusion of obviousness and adopt
the Examiner's findings and conclusions as set forth in the statement of the
rejection and the responsive arguments as our own. (Ans. 7, 8, 17, and 18).
With respect to dependent claim 22, Appellants contend that "a person
of ordinary skill in the art would not have made this combination." (App.
Br. 16). Appellants contend that "Gleckman explicitly teaches away from
the inclusion of light guides to direct light to reflective surfaces.
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Gleckman, 1 :34-37; Yeh Second Decl. ¶ 8." (App. Br. 16). Appellants rely
upon the citation "prior art devices frequently relied on light guides to direct
light to reflective surfaces, necessitating complicated geometries and added
weight and expense." The Examiner maintains "[s]ince Brownlee fails to
teach a 'waveguide' or 'light guide,' and since claims 21 and 22 do not
require a 'waveguide,' Patent Owner's rationale that Gleckman teaches away
from a light guide having a 'complicated geometry, added weight, or
expense' does not traverse the present rejection." (Ans. 18). Appellants did
not file a Reply Brief to address the Examiner’s clarification. We agree with
the Examiner and further note that “A reference may be said to teach away
when a person of ordinary skill, upon [examining] the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.”
Para-Ordnance Mfg. v. SGS Importers Int’l, Inc., 73 F.3d 1085, 1090 (Fed.
Cir. 1995) (alteration in original) (quoting In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994)). The prior art’s mere disclosure of more than one
alternative does not constitute a teaching away from any of the alternatives
when the disclosure does not criticize, discredit, or otherwise discourage the
solution claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). What
the prior art teaches and whether it teaches toward or away from the claimed
invention are determinations of fact. Para-Ordnance Mfg., 73 F.3d at 1088.
Therefore, Appellants' arguments do not show error in the Examiner's
conclusion of obviousness of dependent claim 22.

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We note Appellants' Specification describes the "angular spectrum
restrictor":
Referring to FIG. 12, the top surface 90 of the waveguide
46 may be covered with an angular spectrum restrictor 108 that
restricts the output radiation pattern from the aperture 82 of the
cover 48 to a predetermined range of angles (in this 65 context,
the term "spectrum" is used in the sense of an angular spectrum
rather than a wavelength spectrum). The angular spectrum
restrictor 108 comprises a planar microreplicated optical
structure, such as a holographic diffuser, binary diffractive
diffuser, or array of microlenses or prisms. In the preferred
embodiment, the angular spectrum restrictor 108 comprises a
brightness enhancing film (BEF) which, in addition to
restricting the output spectrum, enhances the intensity of the
illumination from the illumination device 40.

('092 patent, col. 7: 62- 8: 7). We further note that the Gleckman reference
discloses the well-known use of a brightness enhancing film (BEF)
throughout. Appellants have not addressed the merits of the combined
teachings as set forth by the Examiner in the rejection. Therefore,
Appellants argument does not show error in the Examiner's conclusion of
obviousness of dependent claim 22.

CONCLUSIONS
The Examiner did not err in in rejecting claims 17, 20, and 21 based
upon anticipation. The Examiner did not err in rejecting claim 22 based
upon obviousness.

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DECISION
For the above reasons, the Examiner’s rejections of claims 17 and 21-
22 are affirmed.

Time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.550(c).

AFFIRMED

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