Ex Parte Chen et alDownload PDFPatent Trial and Appeal BoardMay 30, 201312044038 (P.T.A.B. May. 30, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte GANG CHEN and RONEN RAPAPORT ____________________ Appeal 2011-005202 Application 12/044,038 Technology Center 3600 ____________________ Before: JENNIFER D. BAHR, STEFAN STAICOVICI, and MICHAEL C. ASTORINO, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-005202 Application 12/044,038 2 STATEMENT OF THE CASE Gang Chen and Ronen Rapaport (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-6. The Examiner withdrew claims 7-18 from consideration. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A system, comprising: a metallic film having a first side and a second side; a regular array of slits in said metallic film, the slits connecting the first and second sides of the metallic film, the array being configured to selectively transmit through the metallic film light having frequencies in a selected frequency band; and a nonlinear optical material situated within said slits. Evidence The Examiner relied on the following evidence in rejecting the claims on appeal: Ballato US 7,110,154 B2 Sep. 19, 2006 Smilanski US 2002/0196509 A1 Dec. 26, 2002 Wenjun Fan et al., Second harmonic generation from patterned GaAs inside a subwavelength metallic hole array, 21 Optics Express No. 21 (2006) (“Fan”). Appeal 2011-005202 Application 12/044,038 3 Rejections Appellants request our review of the following rejections: I. claims 1-3 and 5 under 35 U.S.C. § 102(b) as being anticipated by Fan; II. claim 4 under 35 U.S.C. § 103(a) as being unpatentable over Fan and Ballato; and III. claim 6 under 35 U.S.C. § 103(a) as being unpatentable over Fan and Smilanski. OPINION The issue raised in this appeal is whether the array of circular GaAs- filled holes of Fan is an array of “slits” as called for in Appellants’ claim 1. Appellants assert that the definition of “slit” is “a long narrow cut or opening.” App. Br. 5. In other words, according to Appellants, “a slit has an OPENING with a LONG, NARROW shape.” Id. The Examiner does not dispute Appellants’ asserted definition of the claim term “slit,” and does not offer an alternative definition. Rather, the Examiner finds that the circular holes in Fan’s Au layer satisfy Appellants’ definition of “slit” because they have a “long” dimension in the z direction (i.e., vertical in the lower left inset of figure 1) and a “narrow” width (x or y diameter). See Ans. 7 (stating, “The lower left inset shows that the long (z) dimension of the holes is greater than the width (x or y diameter) dimension of the holes and therefore the holes are slits, and would be understood to be such by an ordinary skilled artisan, and also according to the dictionary.”). As correctly pointed out by Appellants, the openings of Fan’s array of holes are defined in what the Examiner refers to as the x and y directions. Reply Br. 3. Thus, Fan’s openings are circular, that is, of equal span in both Appeal 2011-005202 Application 12/044,038 4 directions and therefore do not satisfy the definition of “slits” asserted by Appellants and accepted by the Examiner. For the above reason, we do not sustain the Examiner’s rejection of claims 1-3 and 5 as anticipated by Fan. We also do not sustain the Examiner’s rejections of claim 4 as unpatentable over Fan and Ballato and of claim 6 as unpatentable over Fan and Smilanski, which are likewise premised on the Examiner’s erroneous finding that Fan’s array of circular holes is an array of “slits” as called for in Appellants’ claim 1. DECISION The Examiner’s decision rejecting claims 1-6 is reversed. REVERSED msc Copy with citationCopy as parenthetical citation