Ex Parte Ise et al

Board of Patent Appeals and Interferences

Mar 24, 2009

11188660 (B.P.A.I. Mar. 24, 2009)

1
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TOSHIHIRO ISE, TATSUYA IGARASHI,
YOUSUKE MIYASHITA, HIDETOSHI FUJIMURA,
MASAYUKI MISHIMA, HISASHI OKADA,
and QIU XUEPENG
____________

Appeal 2009-1653
Application 11/188,660
Technology Center 1700
____________

Decided:1 March 24, 2009
____________

Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and
LINDA M, GAUDETTE, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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Application 11/188,660

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DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 22-27, 29-39, 42-48, and 50-57. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).
Claims 22 and 42 are representative of the subject matter on appeal
and are set forth below:
22. A light emitting element comprising at least a light emitting
layer containing a light emitting material and a host material and having a
peak emission maximum wavelength of 500 nm or less measured under a
fixed d.c. voltage wherein the minimum excitation triplet energy level of
said host material is higher than the minimum excitation triplet energy level
of said light emitting material, and
wherein the peak emission maximum wavelength of 500 nm or less is
derived from a transition from the minimum excitation triplet energy of at
least one of the components of the light emitting layer to the ground state of
said at least one of the components of the light emitting layer,
wherein the peak emission maximum wavelength is the maximum for
at least one of the components of the light emitting layer, and wherein the
minimum excitation triplet energy level of said host material is from 68
kcal/mol to 90 kcal/mol.
42. A light emitting element comprising at least a light emitting
layer containing a light emitting material and a host material and having a
peak emission maximum wavelength of 500 nm or less measured under a
fixed d.c. voltage wherein the minimum excitation triplet energy level of
said host material is higher than the minimum excitation triplet energy level
of said light emitting material, and wherein the peak emission maximum
wavelength of 500 nm or less is derived from a transition from the minimum
excitation triplet energy of at least one of the components of the light
emitting layer to the ground state of said at least one of the components of
the light emitting layer,
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wherein the peak emission maximum wavelength is the maximum for
at least one of the components of the light emitting layer, and wherein the
light emitting material is selected from the group consisting of an iridium
complex, an osmium complex, and a platinum complex.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Adachi US 6,458,475 Oct. 1, 2002

Appellants rely upon the following items as rebuttal evidence:

Nicholas J. Turro, “Modern Molecular Photochemistry”, University Science
Books, pp. 28-32 (1991) (hereinafter “Turro”).

Rule 132 Declaration by Toshihiro Ise, submitted January 3, 2007.

SUMMARY OF THE DECISION
We affirm.
THE REJECTIONS
Claims 22-27, 29-39, 42-48, and 50-57 stand rejected under 35 U.S.C.
§ 103(a) over Adachi.
ISSUE
Does Appellants’ rebuttal evidence sufficiently prove by a
preponderance of the evidence that Adachi does not describe, enable, or put
into possession, “[a] light emitting element . . . having a peak emission
maximum wavelength of 500 nm or less . . . wherein the peak emission
maximum wavelength of 500 nm or less is derived from a transition from the
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minimum excitation triplet energy . . . of the light emitting layer to the
ground state of . . . the light emitting layer” as recited in claims 22 and 42? 2
FINDINGS OF FACT
Figure 10 of Adachi is a graph of EL intensity as a function of
wavelength for fast and slow components, showing both having blue aspect
(col. 10, ll. 25-26). The fast component corresponds to the fluorescence
process, and the slow component corresponds to the phosphorescence
process (col. 3, ll. 50-56). Therefore, Adachi teaches that each of the
components shown in Figure 10 has its own spectrum.
Appellants state that Turro evinces that it is scientifically impossible
for fluorescence and phosphorescence to have the same peak emission
maximum wavelength because E(S1) > E(T1). Based upon this, Appellants
conclude that in Figure 10 of Adachi, the component which has a peak at
about 430 nm in the slow component is fluorescence from an excited singlet
and cannot be from phosphorescence.
The Examiner points out that in Adachi's Figure 10, the shape of the
emission spectra below 500 nm is similar, but not identical, for the fast and
slow components. Hence, the Examiner does not state that Figure 10 shows
that fluorescence and phosphorescence have the same peak emission
maximum wavelength. The Examiner finds that Figure 10 shows a peak
emission maximum wavelength for phosphorescence of approximately 425
nm. The Examiner states that “Turro’s conclusion does not prove that

2 The Examiner makes findings regarding other claims, in addition to the
findings regarding claims 22 and 42 (Ans. 4-7). Appellants do not contest
these findings. Hence, our determinations made with regard to claims 22
and 42 address the outcome in this case.
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Adachi et al. are incorrect in attributing some emission below 500 nm
to the slow component (phosphorescence emission)”. Ans. 4 and 8-9.
Appellants state that the Rule 132 Declaration filed on January 3,
2007 shows that the blue wavelength component is not included in the
phosphorescence spectrum of Zn(BOX)2, and it can thus be said that the blue
light emission component of the slow component asserted by Adachi is not
phosphorescence, but fluorescence.
The Examiner finds that the Rule 132 Declaration filed January 3,
2007 provides spectra obtained upon photostimulation rather than electrical
stimulation. The Examiner finds that the two spectra are not obtained under
the same conditions (the fluorescence spectrum is measured at room
temperature with photostimulation (excitation), at 360 nm while the
phosphorescence spectrum is measured at 77K with photostimulation at 350
nm). The Examiner also finds that the two spectra are obtained for a film
consisting of the emitter material on a substrate, whereas Adachi's spectra
are obtained for a device having a multilayered structure in which the light
emitting layer comprises the emitter material doped and a host material, just
as the present claims require a light emitting layer comprising a light
emitting material and a host material (Ans. 10).
PRINCIPLES OF LAW
A conclusion of obviousness requires that the reference(s) relied upon
be enabling in that it put the public in possession of the claimed invention.
In re Hoeksema, 399 F.2d 269, 274 (CCPA 1968). Every patent is presumed
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valid (35 U.S.C. § 282), and that presumption includes the presumption of
operability. Metropolitan Eng. Co. v. Coe, 78 F.2d 199, 201 (D.C. Cir.
1935). Affidavits or declarations attacking the operability of a patent cited
as a reference must rebut the presumption of operability by a preponderance
of the evidence. In re Sasse, 629 F.2d 675, 681 (CCPA 1980). With regard
to declaration evidence, the court stated in In re Dunn, 349 F.2d 433, 439
(CCPA 1760) "[t]he cause and effect sought to be proven is lost here in the
welter of unfixed variables."

ANALYSIS
Basically, Appellants’ position is that although Adachi teaches that
Figure 10 shows measurement results for phosphoresence and for
fluorescence, individually, this is not possible, for the following reasons.
Appellants argue that Figure 10 of Adachi is a transient EL spectrum
of the element using Zn(BOX)2. Appellants state that the transient EL
method is a method involving observing a relaxation state of light emission
of an organic EL element driven by a pulse voltage. Appellants state that
since this constitutes light emission of the actual element, in the light
emission spectrum thereof, light emission other than the light emitting
material (for example, light emission by a host material, and light emission
by an adjacent layer) can be mixed therein. Therefore (especially in a slow
component), in principle, Appellants assert that it is difficult to specify from
which material the light emission is derived.
Appellants further argue that in the transient EL spectrum, it is
impossible to clearly separate the light emission from an excited triplet and
the light emission from an excited singlet. Appellants assert that one of
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ordinary skill in the art would recognize that, in Figure 10 of Adachi,
the emission spectrum of the slow component includes emission of a fast
component. Appellants state that, in other words, it can be determined that a
component having a peak at about 430 nm shown in the slow component is
the same component as in the fast component, and is the fluorescence from
an excited singlet.
In view of the above, Appellants do not agree with the explicit
teaching in Adachi that Figure 10 is a graph of EL intensity as a function of
wavelength for fast and slow components, showing both having blue aspect
(col. 10, ll. 25-26). Appellants also do not agree with Adachi’s explicit
teaching that the fast decay corresponds to the fluorescence process, and the
slow decay corresponds to the phosphorescence process (col. 3, ll. 50-56).
However, Appellants’ position as summarized above is not the kind of
factual evidence needed regarding rebuttal evidence. That is, arguments of
counsel cannot take the place of factually supported objective evidence. See,
e.g., In re Huang, 100 F.3d 135, 139-40 (Fed. Cir. 1996); In re De Blauwe,
736 F.2d 699, 705 (Fed.Cir. 1984).
Appellants do refer to two items of evidence in support of their
position that Adachi's emission peak in Figure 10 that meets the wavelength
requirement of the present claims (i.e. peak emission wavelength of 500 nm
or less) cannot be from phosphorescence (emission derived from a transition
from the minimum excitation triplet energy to the ground state of a
component).
The first item of evidence is a publication entitled “Modern Molecular
Photochemistry”, written by Nicholas J. Turro. Appellants argue that, as
described in section 2.9 of this publication (pages 28 to 32; submitted with
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the Amendment filed November 2, 2007), because the S1 level is
necessarily higher than the T1 level (see Fig 2.5 in particular), it is
scientifically impossible for fluorescence and phosphorescence to have the
same peak emission maximum wavelength. Appellants then conclude that in
Figure 10, the component which has a peak at about 430 nm in the slow
component is fluorescence from an excited singlet (App. Br. 11).
We note, however, that it is not the Examiner’s position that
fluorescence and phosphorescence have the same peak emission maximum
wavelength. On page 9 of the Answer, the Examiner points out that in
Adachi's Figure 10, the shape of the emission spectra below 500 nm is
similar, but not identical, for the fast and slow components. On page 4 of
the Answer, the Examiner finds that Figure 10 shows a peak emission
maximum wavelength for phosphorescence of approximately 425 nm. The
Examiner does not state that Figure 10 shows that fluorescence and
phosphorescence have the same peak emission maximum wavelength. Ans.
4 and 8-9. A review of Figure 10 evinces that the measurement taken shows
that each of the slow component and the fast component has its own
spectrum, and the spectrums are not identical.
Hence, we cannot see how the evidence relied upon by Appellants
(the Turro publication) disproves the explicit teachings of Adachi as
discussed above. That is, we agree with the Examiner’s statement made at
the top of page 9 of the Answer that “Turro’s conclusion does not prove that
Adachi et al. are incorrect in attributing some emission below 500 nm to the
slow component (phosphorescence emission)”.
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The second item of evidence is the Rule 132 Declaration.3 Appellants
argue that the measurement data in the Rule 132 Declaration filed January 3,
2007 clearly shows that the blue wavelength component is not included in
the phosphorescence spectrum of Zn(BOX)2, and thus it can be said that the
blue light emission component of the slow component of Adachi is not
phosphorescence, but fluorescence (App. Br. 11-12 and Reply Br. 6-8).
Beginning on page 9 of the Answer, the Examiner points out that the
testing carried out in this Declaration (to demonstrate phosphorescence
emission versus fluorescence emission of Adachi's emissive material
(Zn(BOX)2 ), is not carried out under the conditions used to generate Figure
10 of Adachi, and is not carried out under the conditions necessary to meet
the peak emission maximum wavelength limitation of Appellants’ claims.
While Appellants argue that the experimental conditions used in generating
Figure 10 are not disclosed in Adachi, the Examiner rightly points out that
the heading of Figure 10 indicates that the spectra are EL spectra obtained
from a device having the multilayered structure indicated at the top of Figure
10. The Examiner states that "EL" spectra are spectra obtained upon
electrical stimulation of a light-emitting material. The Examiner states that
Appellants’ claims require a peak emission maximum wavelength of 500 nm
or less "measured under a fixed d.c. voltage" (line 3 of independent claims

3 On pages 7-8 of the Answer, the Examiner points out that Appellants
listed two Declarations in their Evidence Appendix. The Examiner indicates
that Appellants only discuss one of these Declarations in the Appeal Brief
(the Declaration filed on January 3, 2007). Hence, we do not consider the
other listed Declaration because Appellants do not discuss it in the Appeal
Brief or Reply Brief.
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22 and 42), which means by electrical stimulation of a light-emitting
material.
In contrast, the Examiner points out that the Rule 132 Declaration
filed January 3, 2007 provides spectra obtained upon photostimulation rather
than electrical stimulation.
In response, Appellants argue that it is known that the spectrum of
phosphorescence or fluorescence measured as an EL element is “almost the
same” as the spectrum of phosphorescence or fluorescence measured as a
solid film according to the testing conducted in the Rule 132 Declaration
filed January 3, 2007 (App. Br. 11 and Reply Br. 7-8). However, we view
this as mere attorney argument and such argument is not as persuasive as
factually supported objective evidence. See, e.g., Huang, 100 F.3d at 139-
40; De Blauwe, 736 F.2d at 705. That is, Appellants argue that the two types
of measurements are “almost the same”, but do not provide factually
supported objective evidence in support thereof.
Furthermore, the Examiner points out that the two spectra are not
obtained under the same conditions (the fluorescence spectrum is measured
at room temperature with photostimulation (excitation) at 360 nm while the
phosphorescence spectrum is measured at 77K with photostimulation at 350
nm). The Examiner also points out that the two spectra are obtained for a
film consisting of the emitter material on a substrate, whereas Adachi's
spectra are obtained for a device having a multilayered structure in which
the light emitting layer comprises the emitter material doped and a host
material, just as the present claims require a light emitting layer comprising
a light emitting material and a host material (Ans. 10).
Appellants respond on pages 6-7 of the Reply Brief. Appellants state
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that (1) Adachi does not give the conditions regarding Figure 10 so
they cannot be replicated, and (2) Appellants cannot compare their invention
with non-existent subject matter.
We believe Appellants have overlooked a point behind the
Examiner’s position which is that comparative testing results are more
convincing when variables are fixed. As pointed out by the Examiner, in the
Rule 132 Declaration, the two spectra are obtained under different
conditions. Hence, it is uncertain what role the different conditions played
in the results. Also, although Appellants argue that the measurement of
spectrum of an emitter on a substrate [versus a multilayered structure as
claimed by Appellants and as set forth in Adachi] “is almost the same”
regarding the spectrum of phosphorescent and fluorescence, it is uncertain
what role the different structure measured played in the results.
Thus, it can be seen that these numerous departures in the Rule 132
Declaration as pointed out by the Examiner render the comparative showing
inconclusive and thus nonsupportive of the conclusion desired to be drawn
by Appellants. See Dunn, 349 F.2d at 439.
In view of the above, we therefore agree with the Examiner that the
rebuttal evidence presented by Appellants is not convincing. Metropolitan
Eng. Co. v. Coe, 78 F.2d at 201; Sasse, 629 F.2d at 681.

CONCLUSIONS OF LAW
Appellants’ rebuttal evidence does not prove by a preponderance of
the evidence that Adachi does not describe, enable, or put into possession,
“[a] light emitting element . . . having a peak emission maximum
wavelength of 500 nm or less. . . wherein the peak emission maximum
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wavelength of 500 nm or less is derived from a transition from the
minimum excitation triplet energy . . . of the light emitting layer to the
ground state of . . . the light emitting layer”, as recited in claims 22 and 42.

DECISION
The rejection of claims 22-27, 29-39, 42-48, and 50-57 under 35
U.S.C. § 103(a) over Adachi 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)(1)(iv).

AFFIRMED

PL Initial;
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