Ex Parte Fattal et al

Patent Trial and Appeal Board

Mar 17, 2017

13880316 (P.T.A.B. Mar. 17, 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.
13/880,316 04/18/2013 David A. Fattal 83235820 5277
56436 7590
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
VU, VU A
ART UNIT PAPER NUMBER
2828
NOTIFICATION DATE DELIVERY MODE
03/21/2017 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID A. FATTAL, MARCO FIORENTINO, JINGJING LI,
MICHEAL RENNE TY TAN, and WAYNE V. SORIN
Appeal 2016-001486
Application 13/880,3161
Technology Center 2800
Before ROMULO H. DELMENDO, BEVERLY A. FRANKLIN, and
BRIAN D. RANGE, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicants (hereinafter the “Appellants”) appeal under 35 U.S.C.
§ 134(a) from the Primary Examiner’s final decision to reject claims 1—15.2
We have jurisdiction under 35 U.S.C. § 6(b).
1 The Appellants state that the real party in interest is Hewlett-Packard
Development Company, LP (hereinafter “HPDC”), which is said to be a
wholly-owned affiliate of Hewlett-Packard Company (Revised Appeal Brief
filed on May 27, 2015, hereinafter “Appeal Br.,” 1). According to the
Appellants, HPDC is a limited partnership established under Texas law and
HPQ Holdings, LLC is its general or managing partner (id.).
2 Appeal Br. 2, 7—18; Reply Brief filed on November 16, 2015, hereinafter
“Reply Br.,” 2—3; Final Office Action (notice emailed on August 14, 2014),
Appeal 2016-001486
Application 13/880,316
We reverse.
BACKGROUND
The subject matter on appeal relates to a small-mode-volume, vertical-
cavity, surface-emitting lasers (VCSEL) and to an optical-bus transmitter or
system containing the same (Specification, hereinafter “Spec.,” 12; Abst.).
The Appellants’ Figure IB illustrates an exemplary VCSEL and is
reproduced as follows:
1O0B
N
FIG. IB
Figure IB above shows a small-mode-volume VCSEL 101 with two
reflecting structures 103, wherein the VCSEL 101 includes, inter alia, an
active structure 102 disposed in a grating reflector structure 112 and a
hereinafter “Final Act.,” 3—14; Examiner’s Answer (notice emailed on
September 17, 2015), hereinafter “Ans.,” 2—9.
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Application 13/880,316
distributed Bragg reflector (DBR) 104 (Spec. H 19, 31). According to the
Appellants, VCSELs are useful in arrays for data communication
applications {id. 13).
Representative claims 1,5, and 7 are reproduced from pages 20—23
of the Appeal Brief (Claims Appendix), as follows:
1. A small-mode-volume, vertical-cavity, surface-emitting
laser, said laser comprising:
two reflecting structures, at least one of which is a
grating reflector structure; and
an active structure to emit light upon injection of carriers,
said active structure disposed within a substantially intrinsic
portion of at least one of said reflecting structures,
wherein said reflecting structures are configured as a
vertical-cavity resonator of small mode-volume.
5. The small-mode-volume, vertical-cavity, surface-
emitting laser of Claim 1, further comprising:
a portion disposed below said active structure, wherein
said grating reflector structure comprises said substantially
intrinsic portion and further comprises:
an upper portion, wherein said active structure is
disposed in said substantially intrinsic portion below said upper
portion,
wherein a p-doped portion, said substantially intrinsic
portion, and an n-doped portion are configured as a vertical p-i-
n diode to provide carrier injection into said active structure,
and
wherein said p-doped portion and said n-doped portion
are selected form [sic] the group consisting of said upper
portion and said portion disposed below said active structure,
respectively, and said portion disposed below said active
structure and said upper portion, respectively.
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Application 13/880,316
7. The small-mode-volume, vertical-cavity, surface-
emitting laser of Claim 1, further comprising:
an upper portion comprising:
said substantially intrinsic portion of said grating
reflector structure;
a p-doped portion disposed adjacent to a first side of a
sub-wavelength grating of said grating reflector structure; and
an n-doped portion disposed adjacent to a second side of
said grating of said grating reflector structure,
wherein said active structure is coupled with said p-
doped portion and said n-doped portion, and
wherein said p-doped portion, said substantially intrinsic
portion included in said upper portion, and said n-doped portion
are configured as a lateral p-i-n diode to provide carrier
injection into said active structure.
REJECTIONS ON APPEAL
The Examiner rejected the claims as follows:
I. Claims 5 and 7 under pre-AIA U.S.C. § 112,12, as
indefinite;
II. Claims 1—6 and 9-11 under pre-AIA 35 U.S.C. § 102(b)
as anticipated by Chang-Hasnain et al.3 (hereinafter
“Chang-Hasnain”);
III. Claims 8 and 12 under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Chang-Hasnain;
IV. Claim 7 under 35 U.S.C. § 103(a) as unpatentable over
Chang-Hasnain and Sakata et al.4 (hereinafter “Sakata”);
and
3 US 2007/0153860 Al, published July 5, 2007.
4 US 5,140,149, issued August 18, 1992.
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Application 13/880,316
V. Claims 13—15 under 35 U.S.C. § 103(a) as unpatentable
over Guilfoyle et al.5 (hereinafter “Guilfoyle”) and
Chang-Hasnain.
(Final Act. 3—14; Ans. 2—9.)
DISCUSSION
Rejection I
The Examiner’s position regarding indefmiteness as to claim 5 is as
follows (Final Act. 3):
Claim 5 [re]cites “said grating reflector structure
comprises said substantially intrinsic portion”, however, said
substantially intrinsic portion in claim 1 is the active structure,
is not a part of the grating reflector structure.
The Examiner provided similar reasoning for claim 7 (id.).
We agree with the Appellants that the Examiner’s rejection is not
well-founded. As the Appellants point out (Appeal Br. 8), independent
claim 1 (from which claims 5 and 7 depend) recites that the “active structure
[is] disposed within a substantially intrinsic portion of [said] at least one of
said reflecting structures,” at least one of which reflecting structures is a
grating reflector structure. Therefore, one skilled in the relevant art would
have understood that claim 5—with or without the amendment submitted on
November 26, 20146—is further specifying the substantially intrinsic
5 US 7,535,944 Bl, issued May 19, 2009.
6 The Appellants and the Examiner devote considerable portions of their
Briefs and Answer to whether the November 26, 2014, Amendment should
have been entered (Appeal Br. 9—10; Reply Br. 2; Ans. 2—6). That issue
relates to a petitionable matter outside of our jurisdiction and should have
been raised by way of a timely-filed petition pursuant to 37 C.F.R. § 1.181
rather than in an appeal. See MPEP § 1205.
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Application 13/880,316
portion, which includes the active structure, to be part of the grating reflector
structure.
Accordingly, we do not sustain Rejection I.
Rejections II—V
The dispositive issue common to Rejections II—V is whether Chang-
Hasnain discloses an “active structure disposed within a substantially
intrinsic portion of at least one of said reflecting structures” as recited in the
independent claims—namely claims 1, 13, and 14 (Appeal Br. 11—12, 17;
Final Act. 4; Ans. 7). For the reasons given by the Appellants and below,
we conclude that the Examiner’s finding concerning this claim limitation
constituted reversible error.
We start with the meaning of certain terms appearing in the disputed
claim limitation. The current Specification defines “substantially intrinsic
portion” as being “undoped except for the portion occupied by the active
structure” (Spec. 136).
With that understanding, we review the Examiner’s findings regarding
the disputed claim limitation. Specifically, the Examiner relied on Chang-
Hasnain’s Figure 15, which we reproduce as follows:
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Application 13/880,316
FIG. IS
Chang-Hasnain’s Figure 15 above illustrates a wavelength tunable vertical
cavity surface emitting laser VCSEL with a sub wavelength grating (SWG)
top mirror, wherein the VCSEL includes, inter alia, an n-DBR mirror 92, a
y-cavity layer with active region 94, a top mirror 96 comprising fixed p-
DBR, and a freely suspended SWG 100, which is shown in Figure 16 (]Hf 69,
134; Abst.).
As the Appellants point out (Appeal Br. 11—12), Chang-Hasnain has
not been shown to disclose an “active structure disposed within a
substantially intrinsic portion of at least one of said reflecting structures,” as
recited in the independent claims. Although the Examiner states that “cavity
portion 94 is inherently an intrinsic (undoped) portion” (Final Act. 4)
(emphasis removed) similar to the device shown in the Appellants’ Figure
2A (Ans. 7), the Examiner fails to direct us to sufficient evidence in support
of this finding. Therefore, the Examiner failed to satisfy the initial burden of
establishing a prima facie case of unpatentability. In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992).
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Application 13/880,316
None of the other cited references have been applied to cure the
deficiency in the Examiner’s rejection. Accordingly, we cannot uphold
Rejections II—V.
SUMMARY
Rejections I—V are not sustained. Therefore, the Examiner’s final
decision to reject claims 1—15 is reversed.
REVERSED
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