Ex Parte Harry et alDownload PDFPatent Trial and Appeal BoardNov 29, 201713719645 (P.T.A.B. Nov. 29, 2017) Copy Citation 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. 13/719,645 12/19/2012 Seibel Harry 5308-1894 3511 65106 7590 MYERS BIGEL, P.A. P.O. BOX 37428 RALEIGH, NC 27627 EXAMINER HORIKOSHI, STEVEN Y ART UNIT PAPER NUMBER 2875 NOTIFICATION DATE DELIVERY MODE 12/01/2017 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 spto @ my ersbigel. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HARRY SEIBEL, DAVID CLATTERBUCK, BRIAN COLLINS, and MICHAEL JOHN BERGMANN (Applicant: Cree, Inc.)1 Appeal 2016-003984 Application 13/719,645 Technology Center 2800 Before MICHAEL P. COLAIANNI, MONTE T. SQUIRE, and DEBRA L. DENNETT, Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL2 Appellants appeal the Examiner’s decision finally rejecting claims 1, 3—11, and 13—23, which constitute all the claims pending in this application. 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify Cree, Inc. as the real party in interest. App. Br. 1. 2 In our Decision, we refer to the Specification filed December 19, 2012 (“Spec.”); Final Office Action dated May 21, 2015 (“Final Act.”); Appeal Brief dated October 7, 2015 (“App. Br.”); Examiner’s Answer to the Appeal Brief dated January 15, 2016 (“Ans.”); and Reply Brief dated March 15, 2016. Appeal 2016-003984 Application 13/719,645 The Claimed Invention Appellants’ disclosure relates to semiconductor light emitting devices that include red phosphors, an LED that emits light having a dominant wavelength in the blue color range, and a recipient luminophoric medium that is configured to down-convert at least some of the light emitted by the LED. Spec. 11; Abstract. Claim 1 is illustrative of the claimed subject matter on appeal and is reproduced below from the Claims Appendix to the Appeal Brief (App. Br. 24) (key disputed claim language italicized and bolded and indentation added): 1. A light emitting device, comprising: a light emitting diode (“LED”) that emits light having a dominant wavelength in the blue color range; a recipient luminophoric medium that is configured to down-convert at least some of the light emitted by the LED, the recipient luminophoric medium including at least: a green YaCebAlcGadOz phosphor that down- converts the radiation emitted by the LED to radiation having a peak wavelength that is between about 525 nanometers and about 545 nanometers; a yellow phosphor that down-converts the radiation emitted by the LED to radiation having a peak wavelength that is between about 550 nanometers and about 570 nanometers; and a red (Ca i-x-y SrxEu2+})SiA IN3 phosphor that has a europium content of between 0.025 and 0.050, wherein x, y, z, a, b, c and d are greater than zero. 2 Appeal 2016-003984 Application 13/719,645 The References The Examiner relies on the following prior art references as evidence in rejecting the claims on appeal: Duggaletal, US 6,700,322 B1 Mar. 2,2004 (hereinafter “Duggal”) Nagatomi et al., US 2006/0045832 A1 Mar. 2, 2006 (hereinafter “Nagatomi”) Oshio US 2007/0259206 Al Nov. 8, 2007 Collins et al., US 2011/0220929 Al Sep. 15,2011 (hereinafter “Collins”) Ishizaki US 2013/0257266 Al Oct. 3, 2013 The Rejections On appeal, the Examiner maintains the following rejections: 1. Claims 1, 3—10, and 22 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Collins in view of Ishizaki, Duggal, and Oshio (“Rejection 1”). Final Act. 5; Ans. 2. 2. Claims 11, 13—21, and 23 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Collins in view of Ishizaki, Duggal, and Oshio and further in view of Nagatomi (“Rejection 2”). Final Act. 9; Ans. 2. OPINION Having considered the respective positions advanced by the Examiner and Appellants in light of this appeal record, we affirm the Examiner’s rejections based on the fact finding and reasoning set forth in the Answer to the Appeal Brief and Final Office Action, which we adopt as our own. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the 3 Appeal 2016-003984 Application 13/719,645 Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections,” citing Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)). We highlight and address specific findings and arguments below for emphasis. Rejection 1 Claims 1, 3, 4, 7, 8, and 22 Appellants argue claims 1, 3, 4, 7, 8, and 22 as a group. App. Br. 3^4. We select claim 1 as representative and claims 3, 4, 7, 8, and 22 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner determines that the combination of Collins, Ishizaki, Duggal, and Oshio suggests a light emitting device satisfying all of the limitations of claim 1 and thus, would have rendered claim 1 obvious. Final Act. 5—7 (citing Collins Tflf 5, 56, 59, 82, Fig. 8A; Ishizaki || 42-45; Duggal, col. 8,11. 48-67; Oshio H 225-229, Figs. 20, 21). Appellants argue that the Examiner’s rejection of claim 1 should be reversed because Ishizaki and Duggal would not lead one of skill in the art to modify Collins in the manner suggested by the Examiner. App. Br. 4; Reply Br. 1—3. In particular, Appellants contend that “the combination of Ishizaki and Duggal would not suggest to one of ordinary skill in the art to replace the green LuAG:Ce phosphor of Collins with a gallium-substituted YAG:Ce phosphor.” App. Br. 4; see also Reply Br. 2. Appellants further argue that the combination of Collins and Oshio does not teach or suggest using europium concentrations in the range of 0.025 to 0.05 in the red (Cai.x.ySrxEu2+y)SiAlN3 phosphor, as recited in Claim 1 (App. Br. 6); one of ordinary skill in the art would not have selected 4 Appeal 2016-003984 Application 13/719,645 a europium concentration between 0.025 and 0.050 for a (Cai_x. ySrxEu2+y)SiAlN3 phosphor when considering the entirety of the teachings of Oshio (id. at 8); and the Examiner’s rejection is based on impermissible hindsight (id. at 15). Appellants also argue that the claimed device achieves unexpected results. App. Br. 11. In particular, relying on the Rule 132 Declaration of Harry Seibel dated August 18, 2014 (“Seibel Decl.”), Appellants contend that: what the inventors unexpectedly found was that the use (Cai_x. ySrxEu2+y)SiAlN3 phosphors that have a europium concentration of at least 2.5% may exhibit improved luminous flux performance while also maintaining good color rendering properties. Id. at 14 (citing Spec. 142); see also Seibel Decl. 17. We do not find Appellants’ arguments persuasive of reversible error in the Examiner’s rejection. On the record before us, we find that a preponderance of the evidence and sound technical reasoning support the Examiner’s analysis and determination that the combination of Collins, Ishizaki, Duggal, and Oshio suggests all of the limitations of claim 1 and conclusion that the combination would have rendered the claim obvious. Collins H 5, 56, 59, 82, Fig. 8A; Ishizaki H 42-45; Duggal, col. 8,11. 48— 67; Oshio H 225-229, Figs. 20, 21. Contrary to what Appellants argue, the Examiner does provide a reasonable basis and identifies a preponderance of the evidence in the record to evince why one of ordinary skill would have combined the teachings of the references to arrive at Appellants’ claimed invention. Final Act. 6 (explaining that it would have been obvious to one of ordinary skill in the art to employ the green phosphor of Collins as YAG:Ce series instead of as 5 Appeal 2016-003984 Application 13/719,645 LuAG:Ce series because the selection of known equivalents is within the level of skill in the art as evidenced by Ishizaki) (citing Ishizaki || 42 45); Final Act. 7 (explaining that it would have been obvious to one of ordinary skill in the art to use a YAG:Ce series having a peak wavelength in the 535 to 545 range because that is the peak wavelength of the LuAG:Ce series phosphor being replaced and it is known to do so by doping the YAG:Ce crystal with Ga, as taught by Duggal); Ans. 2-4. See also KSR Int 7 Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). Appellants fail to direct us to sufficient evidence or provide an adequate technical explanation to establish why the Examiner’s articulated reasoning for combining the teachings of the prior art to arrive at the claimed invention lacks a rational underpinning or is otherwise based on some other reversible error. We do not find Appellants’ arguments that the combination of Collins and Oshio does not teach or suggest using europium concentrations in the range of 0.025 to 0.05 (App. Br. 6; Reply Br. 3) and one of ordinary skill in the art would not have selected a europium concentration between 0.025 and 0.050 (App. Br. 8; Reply Br. 4) persuasive of reversible error for the well- stated reasons provided by the Examiner at page 7 of the Final Office Action and pages 5—7 of the Answer. In particular, as the Examiner finds (Final Act. 5—7), Collins discloses a light emitting device comprising a light emitting diode 34 that emits light having a dominant wavelength in the blue color range (Collins 1 82, Fig. 6 Appeal 2016-003984 Application 13/719,645 8A) and using a red CaSiAHSf phosphor doped with europium (id. | 59 (disclosing “a red phosphor ((Cai.xSrx)SiAlN3: Eu2+)”)). As the Examiner further finds (Final Act. 7), Oshio discloses using a SrAlSiN3:Eu2+ phosphor having europium content of between 0.01 and 0.04 in order to achieve the correct color light emission and high emission intensity. Oshio, 225—229, Figs. 20, 21. In particular, as the Examiner finds (Ans. 6), paragraph 227 of Oshio explicitly teaches a “Eu replacement amount” of “preferably 1 atomic % to less than 4 atomic %” (which corresponds to a europium doping concentration of 0.01 to 0.04). As the Examiner also finds (Ans. 6—7), Oshio teaches a “CaAlSilSh” phosphor (Oshio 196) and further suggests an AlSilSh-based phosphor with the addition of europium preferably in the amount of 0.005 to 0.10 (id. 1 101). Based on the above findings regarding the combined teachings of cited references, we concur with the Examiner’s determination (Final Act. 7; Ans. 5—7) that it would have been obvious for one of ordinary skill in the art to have used a red (Cai.x.ySrxEu2+y)SiAlN3 phosphor with a europium concentration in the range of 0.01 to 0.04 (Oshio 1227) and/or 0.005 to 0.1 (id. 1101), which overlap the claimed range of 0.025 to 0.04. Appellants’ arguments do not reveal reversible error in the Examiner’s analysis and factual findings in this regard. Appellants’ argument that, based on Oshio’s teachings, one of ordinary skill in the art would have necessarily “selected a europium concentration of 0.02 percent” (App. Br. 10) is not well-taken because it is premised on what Appellants contend the Oshio reference teaches individually, and not on the combined teachings of the references as a whole 7 Appeal 2016-003984 Application 13/719,645 and what the combined teachings would have suggested to one of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Moreover, as the Examiner explains (Ans. 8—9), although Oshio may disclose examples having europium concentrations of 0.02, the reference also discloses phosphors with europium concentrations ranging from 0.01 to 0.04 and 0.005 to 0.1 (Oshio Tflf 101, 227). Indeed, a reference is not limited to the disclosure of specific working examples. In re Mills, 470 F.2d 649, 651 (CCPA 1972); In re Fracalossi, 681 F.2d 792, 794 n.l (CCPA 1982) (A prior art reference’s disclosure is not limited to its examples.); In re Boe, 355 F.2d 961, 965 (CCPA 1966) (All of the disclosures in a prior art reference “must be evaluated for what they fairly teach one of ordinary skill in the art.”). We do not find Appellants’ argument regarding unexpected results persuasive for the well-stated reasons provided by the Examiner at pages 10-13 of the Answer. In particular, we find that Appellants have not shown reversible error in the Examiner’s determination (Ans. 12) that having a higher proportion of phosphor in the green wavelength would have been expected by one of ordinary skill to result in higher luminance, and that the total luminous flux (i.e., the combination of blue, red, green, and yellow output from the device) is higher with the higher europium concentration red phosphor would not have been unexpected to one of ordinary skill in the art. See Oshio Figs. 20, 21,196; Collins 1 58; Ishizaki || 42-45; Duggal, col. 8, 11. 48-67. Moreover, the evidence relied upon by Appellants (see Spec. Tflf 36, 37, 42, 46-49, Figs. 2-4) is not compared to the closest prior art (Collins) and, thus, is not persuasive evidence of nonobviousness. It is well 8 Appeal 2016-003984 Application 13/719,645 established that the burden of showing unexpected results rests on the person who asserts them by establishing that the difference between the claimed invention and the closest prior art was an unexpected difference. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). Appellants’ arguments regarding the Seibel Declaration (App. Br. 11— 15; Reply Br. 5) are not persuasive because Dr. Seibel is a named inventor and, more importantly, the declaration is largely conclusory. Cf. In re Bulina, 362 F.2d 555, 559 (CCPA 1966) (“[A]n affidavit by an applicant or co-applicant as to the advantages of his invention is less persuasive than one made by a disinterested person.”); see In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (“It is well settled that unexpected results must be established by factual evidence. Mere argument or conclusory statements . . . does not suffice.”). The portions of the Seibel Declaration that Appellants rely on (Seibel Decl. 4, 6—8) also lack adequate factual support and rest solely on Dr. Seibel’s uncorroborated opinion testimony. See, e.g., Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294 (Fed. Cir. 1985) (“Lack of factual support for expert opinion going to factual determinations . . . may render the testimony of little probative value in a validity determination.”). Claims 5, 6, and 9 Appellants argue claims 5, 6, and 9 as a group. App. Br. 17. We select claim 5 as representative and claims 6 and 9 stand or fall with claim 5. 37 C.F.R. § 41.37(c)(l)(iv). Claim 5 depends from claim 3 and further recites: wherein a ratio by weight of the green phosphor to a combination of the yellow phosphor and the green phosphor is between about 0.35 and about 0.55, and wherein a ratio by weight of the 9 Appeal 2016-003984 Application 13/719,645 combination of the yellow phosphor and the green phosphor to the red phosphor is between about 6.0 and about 9.0. App. Br. 24 (Claims App’x). Appellants argue that the Examiner’s rejection of claim 5 should be reversed because “[tjhere is no teaching or indication that the LuAG:Ce phosphor and the gallium-substituted YAG:Ce phosphor should have the same weight ratios with respect to a YAG:Ce phosphor.” App. Br. 17. We do not find Appellants’ argument persuasive of reversible error in the Examiner’s rejection for the well-stated reasons provided by the Examiner at pages 15—16 of the Answer. In particular, we find that Appellants have not shown reversible error in the Examiner’s findings regarding what Collins’ teachings (see Collins Ull, 12, 43—45, 70) would have suggested to one of ordinary skill in the art. As the Examiner explains (Ans. 15—16), because Collins discloses modifications to similar type phosphors, i.e., a Lu Aluminum Garnet (LuAG) to an Yttrium Aluminum Garnet (YAG) and the specific dopant amount of (Ca, Sr)AlSiN3:Eu having similar color points, one of ordinary skill would have had reason to balance the phosphor amounts within the claimed ranges to achieve the correct relative intensities to obtain white light. Collins H 43^15, 70. Appellants’ assertion that “the cited art fails to disclose or suggest the specific ratios of specific phosphors that are recited in Claims 5-6 and 9” (App. Br. 17), without more, is insufficient to rebut or otherwise establish reversible error in the Examiner’s analysis and factual findings in this regard. Attorney argument is not evidence. De Blauwe, 736 F.2d at 705. 10 Appeal 2016-003984 Application 13/719,645 Claim 10 Claim 10 depends from claim 1 and further recites: wherein in the YaCebAlcGadOz phosphor the value of b/(a+b) is less than 0.1 and the value of d/(c+d) is between 0.1 and 0.6, and wherein R is equal to (a+b)/(c+d) and is between 0.5 and 0.7. App. Br. 25 (Claims App’x). Appellants argue that the Examiner’s rejection of claim 10 should be reversed because “the mixing of phosphors is a highly unpredictable chemical art” and “one of skill in the art would not have been led to somehow ‘optimize’ the specific parameters” recited in Claim 10. App. Br. 18. We do not find Appellants’ argument persuasive of reversible error in the Examiner’s rejection because it is conclusory and for the reasons provided by the Examiner at pages 16—17 of the Answer. In particular, we find that Appellants have not shown reversible error in the Examiner’s findings (Ans. 16) that adding Ga tunes the wavelength output of a YAG:Ce type phosphor (Duggal, col. 8,1. 61) and it was well-known in the art that Ce and Eu dopants affect the luminescence output and peak of the phosphors in a similar way (Oshio 1101). Appellants’ argument likewise does not reveal reversible error in the Examiner’s determination (Ans. 16—17) that it would have been obvious to one of ordinary skill to fine tune the phosphor by finding optimum or suitable constituent amounts of Ce and Ga through routine experimentation to obtain appropriate levels of luminous output and wavelength peak. Accordingly, we affirm the Examiner’s rejection of claims 1, 3—10, and 22 under 35 U.S.C. § 103(a) as obvious over the combination of Collins, Ishizaki, Duggal, and Oshio. 11 Appeal 2016-003984 Application 13/719,645 Rejection 2 Claims 11, 13—15, and 23 Appellants argue claims 11, 13—15, and 23 as a group. App. Br. 18. We select claim 13 as representative and claims 11, 14, 15, and 23 stand or fall with claim 13. 37 C.F.R. § 41.37(c)(l)(iv). Claim 13 depends from claim 11 and recites: The light emitting device of Claim 11, wherein the red (Cai_x. vSrxEu2+y)SiAlN3 phosphor has a europium content of between 0.025 and 0.050. App. Br. 26 (Claims App’x). By virtue of its dependence on claim 11, claim 13 further recites an LED “having a dominant wavelength between 440 nm and 455 nm.” Id. at 25 (Claims App’x) (emphasis added). The Examiner determines that the combination of Collins, Ishizaki, Duggal, Oshio, and Nagatomi suggests a light emitting device satisfying all of the limitations of claim 13 and thus, would have rendered claim 13 obvious. Final Act. 9—10 (citing Collins Tflf 5, 56, 59, 82, Fig. 8a; Ishizaki || 42^45; Duggal, col. 8,11. 48-67; Oshio H 225-229, Figs. 20, 21, 23, 30; Nagatomi, Abstract). Appellants argue that the Examiner’s rejection of claim 13 should be reversed for the same reasons previously presented in response to the Examiner’s Rejection 1 regarding claim 1. App. Br. 19. We do not find this argument persuasive of reversible error in the Examiner’s rejection for the same reasons previously discussed above in affirming the Examiner’s rejection of claim 1 (Rejection 1). Appellants also argue that the Examiner’s rejection should be reversed because: 12 Appeal 2016-003984 Application 13/719,645 one of skill in the art combining the teachings of the five prior art references used to reject Claim 13 would not have been led to use blue LEDs having a dominant wavelength in the range of 440-455 nanometers as is recited in Claim 13. App. Br. 20. We do not find Appellants’ argument persuasive of reversible error in the Examiner’s rejection for the reasons provided by the Examiner at pages 17—18 of the Answer. In particular, as the Examiner finds (Ans. 17) and contrary to what Appellants argue, Collins does explicitly disclose a “blue LED that emits radiation with a dominant wavelength in a range of about 380 to 475 nm” (Collins 1 82), which overlaps the claimed range. Appellants’ arguments regarding Figures 7A and 7B of Collins are not well-taken because, as previously discussed above, a reference is not limited to the disclosure of specific working examples. Mills, 470 F.2d at 651. Rather, a reference is good for all that if fairly teaches or suggests to one of ordinary skill in the art. Boe, 355 F.2d at 965. Claims 16—18 and 23 Appellants argue claims 16—18 and 23 as a group. App. Br. 21. We select claim 16 as representative and claims 17, 18, and 23 stand or fall with claim 16. 37 C.F.R. § 41.37(c)(l)(iv). Claim 16 recites: A phosphor for use with a light emitting device, comprising: a plurality of (Cai.x.ySrxEu2+y)SiAlN3 phosphor particles, wherein x is between about 0.88 and about 0.96, and wherein y is between about 0.025 and about 0.050, and wherein 1-x-y is greater than zero. App. Br. 26 (Claims App’x). 13 Appeal 2016-003984 Application 13/719,645 Appellants argue that the Examiner’s rejection of claim 16 should be reversed because (1) the cited art does not disclose or suggest a (Cai_x. ySrxEu2+y)SiAlN3 phosphor that includes both calcium and strontium, where the strontium percentage is between 0.88 and about 0.96 and (2) one of ordinary skill in the art would not have modified Collins based on Oshio by selecting a europium concentration in the claimed range of 0.025 to 0.050. App. Br. 21—22. We do not find Appellants’ arguments persuasive of reversible error in the Examiner’s rejection for the reasons provided by the Examiner at pages 9—11 of the Final Office Action, page 18 of the Answer, and essentially the same reasons previously discussed above in affirming the Examiner’s rejection of claim 1. As the Examiner finds (Ans. 18; Final Act. 10) and contrary to what Appellants argue, the cited art combination does suggest a (Cai_xSrx)SiAlN3: Eu2+ phosphor that includes both calcium and strontium, where the strontium content is between 0.88 and 0.96. Collins H 48, 59; Oshio, Figs. 23, 30. In particular, as the Examiner further finds (Ans. 18; Final Act. 10) Collins discloses using a SiAM? type phosphor doped with europium that includes both calcium and strontium and covers the entire content range of Ca to Sr in terms of relative doping. Collins 1 59. Additionally, Oshio discloses an AlSilSf type phosphor compositions comprising both calcium and strontium (Oshio 196); europium concentrations, which overlap the claimed range {id. 11 101,227). Appellants arguments at pages 21 and 22 of the Appeal Brief and page 6 of the Reply Brief are largely conclusory and without, more, 14 Appeal 2016-003984 Application 13/719,645 insufficient to rebut or otherwise establish reversible error in the Examiner’s analysis and factual findings in this regard. De Blauwe, 736 F.2d at 705. Claims 19—21 Appellants argue that the Examiner’s rejection of claims 19—21 should be reversed for the same reasons previously presented in response to the Examiner’s Rejection 1 regarding claim 1. App. Br. 22—23. We do not find this argument persuasive of reversible error in the Examiner’s rejection for the same reasons previously discussed above in affirming the Examiner’s rejection of claim 1 (Rejection 1). Accordingly, we affirm the Examiner’s rejection of claims 11, 13—21, and 23 under 35 U.S.C. § 103(a) as obvious over the combination of Collins, Ishizaki, Duggal, Oshio, and Nagatomi. DECISION/ORDER The Examiner’s rejections of claims 1, 3—11, and 13—23 are affirmed. It is ordered that the Examiner’s decision is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 15 Copy with citationCopy as parenthetical citation