Ex Parte Aitken et al

Patent Trial and Appeal Board

Mar 27, 2017

11207691 (P.T.A.B. Mar. 27, 2017)

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.
11/207,691 08/18/2005 Bruce G. Aitken WJT003-0081 (SP05-088) 8214
22928 7590 03/29/2017
TORNTNO TNmRPORATFD
EXAMINER
SP-TI-3-1
CORNING, NY 14831
BREVAL, ELMITO
ART UNIT PAPER NUMBER
2875
NOTIFICATION DATE DELIVERY MODE
03/29/2017 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):
u sdocket @ corning .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUCE G. AITKEN, MARK A. LEWIS,
and MARK A. QUESADA
Appeal 2014-0031681
Application 11/207,691
Technology Center 2800
Before MAHSHID D. SAADAT, DAVID M. KOHUT, and
MONICA S. ULLAGADDI, Administrative Patent Judges.
ULLAGADDI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 13, 19, and 35—41.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
According to Appellants, the claims are directed to a device and
method for inhibiting oxygen and moisture degradation of light emitting or
1 The real party in interest is Coming Incorporated. App. Br. 2.
2 Claims 1—12 are withdrawn. App. Br. 13—15 (Claims App’x). Claims 14—
18 and 20-34 are cancelled. Id. at 15—16.
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Application 11/207,691
thin film devices. Abstract. Claim 13, reproduced below, is illustrative of
the claimed subject matter:
13. An organic electronic device comprising:
a substrate plate;
an inner layer deposited on a surface of said substrate
plate, the inner layer comprising an outer surface and at least one
organic electronic or optoelectronic layer;
a single thin-film layer hermetic seal formed by a tin
fluorophosphate low liquidus temperature inorganic material
deposited over the at least one organic electronic or
optoelectronic layer; and
wherein said tin fluorophosphate low liquidus temperature
inorganic material is in contact with substantially the entire outer
surface of said inner layer.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Cornelius et al. (“Cornelius”) US 5,089,446 Feb. 18, 1992
Takeuchi et al. (“Takeuchi”) US 2005/0218803 Al Oct. 6, 2005
REJECTION
Claims 13, 19, and 35—41 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Takeuchi and Cornelius. Final Act. 2—7.
ISSUES
First Issue: Did the Examiner err in combining Takeuchi and
Cornelius and concluding the combination renders obvious the subject
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matter recited in independent claim 13, as well as the subject matter
similarly recited in independent claims 40 and 41?
Second Issue'. Did the Examiner err in finding the combination of
Takeuchi and Cornelius teaches or suggests that “a thickness of said thin-
film layer is about 2.5 microns,” as recited in dependent claim 39?
ANALYSIS
First Issue
The Examiner finds Takeuchi teaches the claimed “substrate plate,”
“inner layer,” “at least one organic layer electronic,” and “an inorganic
sealing layer” and “hermetic seal deposited over the organic electronic,” but
fails to teach the claimed “tin fluorophosphate low liquidus temperature
inorganic material.” Final Act. 2. The Examiner finds Cornelius teaches the
tin fluorophosphate material. Id. at 3. The Examiner concludes
[I]t would have been obvious to one of ordinary skill in the art at
the time the invention was made to use the sealing material
composition of Cornelius in the device of Takeuchi for the
purpose of having an improved sealing material capable of
forming a fusion seal at a low sealing temperature (col. 2, lines
34-36) and a sealing layer with high resistance against moisture.
Furthermore, it has been held that simple substitution of one
known element for another to obtain predictable results is
obvious.
Id.
First, Appellants argue Takeuchi teaches away from Cornelius
because, for example, “Takeuchi provides no teaching or suggestion
whatsoever that the sealing films disclosed therein can be anything other
than SiNx films of the very specific ratio” disclosed in Takeuchi. App. Br.
5—7. Initially, we note that the Supreme Court rejected the rigid requirement
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of a teaching or suggestion or motivation to combine known elements in
order to show obviousness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415
(2007). The Court held that an obviousness analysis “need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” Id. at 418. Appellants’
first argument is unpersuasive, in part, because there exists no requirement
that the rationale for combining references be expressly set forth in the
references themselves.
Furthermore, our reviewing court has held “[t]he prior art’s mere
disclosure of more than one alternative does not constitute a teaching away
from any of these alternatives because such disclosure does not criticize,
discredit, or otherwise discourage the solution claimed.” In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, we agree with the Examiner’s
finding that “Takeuchi does not disclose if replacing the sealing layer with
another sealing layer other than silicon nitride that the device would not
function or work properly,” but rather provides a comparison of silicon
nitride film sealing layer types. Ans. 3. Accordingly, we are further
unpersuaded by Appellants’ first argument because Appellants do not cite
sufficient evidence supporting Appellants’ argument that Takeuchi
“criticize, discredit, or otherwise discourage[s]” the usage of tin
fluorophosphate, as recited in claims 13, 40, and 41.
Second, Appellants specifically assert that “Takeuchi’s thin-film seals
cannot be made using the Cornelius composition” because Takeuchi
describes creating its seals using chemical vapor deposition (CVD) and
Cornelius describes using a “heat fusion method.” App. Br. 7—8. Appellants
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support their arguments with the Declaration of Dr. Bruce Aitken (“Aitken
Deck”). Dr. Aitken’s Declaration relates to an earlier rejection of the claims
over Aota and Cornelius, which was withdrawn in an Office Action prior to
the Action from which this appeal was taken. See Aitken Deck 1116—20.
To the extent that Dr. Aitken’s opinion is relevant to the rejection on appeal,
we address it herein. Dr. Aitken opines that “[tjhere is no reason a glass
scientist would select a bulk glass as a suitable precursor material for a vapor
deposition process.” Id. 118. Dr. Aitken further opines that
[I]f a process suitable for the formation of a thin film is used,
where the material is never in a liquid or fluid state after the
deposition, e.g., sputtering, evaporation, laser ablation, chemical
vapor deposition, etc., then it certainly isn’t obvious that any
glass would work.... Our colleagues long believed that hermetic
encapsulation via thin film deposition (e.g. sputtering) of tin
fluorophosphates would never work.
Id. 120.
Initially, we note that claim 13 does not require the “tin
fluorophosphate” to be formed by a particular process. See Ans. 6 (“[T]he
method of making the product is not recited anywhere in any of the
claims.”). Appellants’ Specification3 discloses that the low liquidus
temperature (LLT) material 202 “can be deposited using anyone [sic] of [a]
variety of processes including, for example, sputtering, flash evaporation,
spraying, pouring, frit-deposition, vapor-deposition, dip-coating, painting,
rolling[,] . . . spin-coating, a co-evaporation, a laser ablation process, or any
combination thereof.” Spec. 5,11. 13—19.
Furthermore, we note that Appellants’ arguments and Dr. Aitken’s
testimony are not responsive to the Examiner’s rejection. The Examiner’s
3 Referencing the Specification filed August 18, 2005.
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proffered combination modifies Takeuchi’s invention to “replace the sealing
layer of Takeuchi which is formed by chemical vapor deposition with the
sealing layer of Cornelius which is formed by fusion process.” Ans. 3
(emphasis added); see id. at 6 (“[Djuring the fabrication process, the CVD
will not even be used because the cheaper and simpler fusion process of
Cornelius will replace the CVD process of Takeuchi.”) The Examiner notes
that “the underlying process (e.g., sputtering)” discussed in Dr. Aitken’s
Declaration “is not the same process as fusion.” Id. at 5.
For this same reason, we are unpersuaded by Appellants’ argument
that, absent Si-N bonds of the specific ratio, Takeuchi will not “provide
proper water permeability . . . thus rendering Takeuchi[’s] seal
unsatisfactory for its intended purpose” and that “a skilled artisan would not
have had a reasonable expectation of success in making a thin-film hermetic
seal of the composition as claimed.” App. Br. 7; see id. at 8 (arguing that
the Examiner’s proffered combination of Takeuchi and Cornelius would
require “a modification, i.e., removing the Si-Si bonding chains, fwhich]
would destroy the functionality of Takeuchi’s hermetic seals”); see also
Aitken Deck H 19 (“Cornelius provides no comparative examples of the
aqueous durability of a tin fluorophosphate glass against other materials,
including silicon nitride.”).
We are also unpersuaded by Appellants’ argument regarding Si
bonding and the argument regarding a lack of comparative examples
because the test for obviousness is not whether the features of one reference
may be bodily incorporated into another reference. In re Bozek, 416 F.2d
1385, 1390 (CCPA 1969); In reMapelsden, 329 F.2d 321, 322 (CCPA
1964). Rather, the relevant inquiry is whether the claimed subject matter
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would have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references. See In re Keller, 642 F.2d 413, 425
(CCPA 1981). Appellants do not persuasively address the Examiner’s
proffered combination of Takeuchi and Cornelius, nor what the combined
teachings would have suggested to one of ordinary skill in the art.
For the foregoing reasons, we are not persuaded by Appellants’
second argument.
Third, Appellants argue “Takeuchi teaches that, to make the seals
taught therein truly hermetic, a second sealing layer is required ... in sharp
contrast to the single layer hermetic seal claimed.” App. Br. 9. In the
Answer, the Examiner indicates that “[t]his argument is moot because it is
referring to the second embodiment of the invention of Takeuchi which was
not cited in the Office Action,” and instead “the first embodiment of the
invention which is cited in the Office Action does not require a second
sealing layer.” Ans. 4. For this reason, Appellants’ third argument is
unpersuasive of Examiner error.
In view of the above, we are not persuaded the Examiner erred in
concluding the combination of Takeuchi and Cornelius renders obvious the
subject matter recited in independent claims 13, 40, and 41 and dependent
claims 19 and 35—38, not separately argued. Therefore, we sustain the
35 U.S.C. § 103(a) rejection of claims 13, 19, 35—38, 40, and 41 over
Takeuchi and Cornelius.
Second Issue
Claim 39 recites, inter alia, “a thickness of said thin-film layer is
about 2.5 microns.” Appellants argue that the range encompassed by
Takeuchi’s teaching of a 0.5 pm thickness and Cornelius’ teaching of a
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0.003” thickness cannot be optimized based on skill in the art because the
teachings do not generally disclose the claimed range recited in claim 39.
App. Br. 10.
Initially, we note that claim 39 only recites a single thickness value,
2.5 microns, and not a range. The Examiner finds that Appellants have “not
disclosed any criticality to the claimed thin-film layer thickness” and cites
Appellants’ Specification, which discloses that ‘“the thin-layer thickness can
be made as thick as one needs depending on one’s chosen deposition
duration.’” Ans. 7 (emphasis omitted); see Spec. 12,11. 12—14.
We agree with the Examiner that the combined teachings of Takeuchi
and Cornelius would suggest a choice most apt for the application at issue
that, in particular, exhibits the desired properties. Appellants do not
persuasively rebut the Examiner’s findings. See generally Reply Br.
For the foregoing reason, we are not persuaded the Examiner erred in
finding the combination of Takeuchi and Cornelius teaches the limitation
recited in claim 39. Therefore, we sustain the 35 U.S.C. § 103(a) rejection
of claim 39 over Takeuchi and Cornelius.
DECISION
The Examiner’s rejection of claims 13, 19, and 35—41 is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended. See 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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