Ex Parte Klunder et al

Patent Trial and Appeal Board

Jan 18, 2018

12447668 (P.T.A.B. Jan. 18, 2018)

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.
12/447,668 04/29/2009 DERK J.W. Klunder 2006P01811WOUS 5853
24737 7590 01/22/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue LEE, SHUN K
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
01/22/2018 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):
patti. demichele @ Philips, com
marianne. fox @ philips, com
katelyn.mulroy @philips .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DERK J.W. KLUNDER1
and Maarten M.J.W. Herpen
Appeal 2017-006021
Application 12/447,668
Technology Center 2800
Before BRADLEY R. GARRIS, JEFFREY T. SMITH, and
MARK NAGUMO, Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Derk J.W. Klunder and Maarten M.J.W. Herpen (“Klunder”) timely
appeal under 35 U.S.C. § 134(a) from the Final Rejection2 of all pending
claims 1-10 and 13-22. We have jurisdiction. 35 U.S.C. § 6. We affirm.
1 The real party in interest is identified as Koninklijke Philips Electronics
N.V. (Appeal Brief, filed 30 November 2016 (“Br.”), 2.)
2 Office Action mailed 8 July 2016 (“Final Rejection”; cited as “FR”).
Appeal 2017-006021
Application 12/447,668
OPINION
A. Introduction3
This is the second time rejected claims based on this application have
come before us for adjudication. The subject matter on appeal relates to a
luminescence sensor said to be able to distinguish between luminescence
induced in the sample from the much stronger light used to illuminate the
sample and induce the luminescence. (Spec. 1,11. 19-21.) The Specification
also teaches that it is important to distinguish luminescence arising from
target molecules in a specific region from luminescence generated elsewhere
in the sample. {Id. at 11. 23-25). A detailed description of the way the
inventors report they have solved this problem is provided in our Opinion in
the first appeal,4 with which we presume familiarity.
Following our affirmance of the rejections over prior art of record in
the first appeal, Klunder filed a Request for Continued Examination under
37 C.F.R. § 114 (“RCE”), and in due course, following another RCE, the
case has returned to us for review. The claims have been amended to recite
the presence of a wire-grid polarizer in at least one of the input reflector and
the output reflector defining the sample excitation and luminescence cavity.
3 Application 12/447,668, Biosensor using wire-grids for increasing cavity
energy, filed 29 April 2009 as the national stage under 35 U.S.C. § 371 of
PCT/IB07/54425, filed 31 October 2007, claiming the benefit of
EPO 06123216.1, filed 31 October 2006. We cite the Specification as
“Spec.”
4 Decision on Appeal 2013-004283, communicated 30 March 2015 (aff d)
(“Opl”).
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Application 12/447,668
In Klunder’s words,
In view of the Board’s decision, the applicants amended the
claims to specifically recite that the claimed sensor comprises
at least one reflector that is a wire-grid polarizer, the original
claim merely recited that at least one reflector is a wire grid.
The applicants have recognized that, as noted by the
Examiner and the Board, at least one of Herman’s
embodiments could be considered to form a wire grid.
Accordingly, the applicants narrowed the scope of the claims
by using the well recognized term of art: a wire-grid
polarizer. The Board did not address whether Herman’s wire
grid structure formed a wire-grid polarizer.
(Reply 8,11. 22-29.)
As will be seen, the resolution of this appeal depends on whether the
applied prior art, which encompasses the art relied on in the first appeal,
teaches or suggests a reflector comprising a wire-grid polarizer.
Claim 1 is representative and reads:
A luminescence sensor comprising:
an input reflector for receiving input radiation with a first
predetermined wavelength;
an output reflector;
a resonant cavity formed between the input reflector and
the output reflector, the resonant cavity configured to
receive luminescent particles,
increase cavity excitation energy of radiation having the
first predetermined wavelength, and
output luminescent radiation,
wherein at least one of the input reflector and the output
reflector is a wire-grid polarizer having apertures
between metal strips in a plane of the wire-grid polarizer,
wherein a width of the aperture is below a diffraction
limit of the input radiation, and
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Application 12/447,668
wherein a reflection coefficient of the input and output
reflectors is greater than 0.5 for radiation having the first
predetermined wavelength and a polarization of the input
radiation.
(Claims App., Br. 13; some indentation, paragraphing, and emphasis added.)
Remaining independent claims 13 (biosensing detection system),
14 (method of biosensing), and 16 (device) all recite the requirement that at
least one of the cavity-defining reflectors comprise at least one wire-grid
polarizer.
The Examiner maintains the following grounds of rejection5’6:
A. Claims 1, 2, 5-10, 13, 14, 16-19, and 22 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Herman7 and Fleming.8
Al. Claims 3 and 4 stand rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Herman, Fleming, and
Trotter.9
5 Examiner’s Answer mailed 27 January 2017 (“Ans.”).
6 Because this application was filed before the 16 March 2013, effective
date of the America Invents Act, we refer to the pre-AIA version of the
statute.
7 Peter Herman et al., Photonic crystal mirrors for high-resolving power
Fabry Perots, U.S. Patent Application Publication 2005/0270633 Al (2005).
8 James G. Fleming and Shawn-Yu Fin, Method to fabricate layered
material compositions, U.S. Patent No. 6,358,854 B1 (2002).
9 Donald M. Trotter, Jr., Photonic crystal optical isolator, U.S. Patent
Application Publication 2002/0154403 Al (2002).
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Application 12/447,668
A2. Claims 15, 20, and 21 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Herman, and Fleming, and Hanumegowda.10
B. Discussion
The Board’s findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Briefly, the Examiner finds that Herman discloses a luminescence
sensor comprising photonic crystal reflectors that define a resonant cavity—
a photonic crystal Fabry Perot Resonator (“PCFP”). (FR3.) The Examiner
finds further that Herman describes a PCFP with a multistep lithographic
stacking (i.e., “Lincoln Log®”* [11]) photonic crystal reflector (FR 3—4), and
that Fleming teaches ways of making such layered structures {id. at 4).
More particularly, the Examiner finds that Fleming teaches that “[mjost
metals, semiconductors, and insulators can be included in a layered material
composition using the present invention.” {Id., quoting Fleming, col. 5,
11. 9-11.) The Examiner finds further that the metal “Lincoln Log” stack
corresponds to the wire-grid polarizer recited in the claims. {Id. at 11. 7-10.)
The Examiner concludes that it would have been obvious “to provide known
conventional photonic crystal mirrors (e.g., comprising apertures between
10 Niranjan M. Hanumegowda et al., Development of Label-free
microsphere optical resonator bio/chemical sensors. Fiber Optic Sensor
Technology and Applications IV, 6004 Proc. SPIE 600401-12 (2005).
11 John Lloyd Wright [son of architect Frank Lloyd Wright], Toy cabin
construction, U.S. Patent No. 1,351,068 (1920); inducted into the National
Toy Hall of Fame, 1999: http://www.toyhalloffame.org/toys/lincoln-logs
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Application 12/447,668
metal strips) as the unspecified photonic crystal mirrors of Herman et al.”)
{Id. at 5,11. l^k)
Klunder urges that Herman and Fleming do not disclose a wire-grid
polarizer, which the art understands as having, Klunder argues, a well-
known and specific structure. In particular, Klunder urges that “the wire-
grid polarizer . . . consists of a regular array of fine parallel metallic wires,
placed in a plane perpendicular to the incident beam.” (Br. 8, citing
WikipediA, “Polarizer.”) Rather, according to Klunder, Herman discloses
three-dimensional photonic crystal structures as reflectors for a Fabry-Perot
interferometer. (Br. 8-9.) As for the “Lincoln log” structure mentioned by
Herman (Herman 7 [0089]) and illustrated by Fleming,12 Klunder “concur[s]
with the fact that a photonic crystal can be made of metal strips arranged in a
‘Lincoln log’ fashion.” (Br. 9,1. 16-17.) “However,” Klunder emphasizes,
“this photonic crystal is not a wire-grid polarizer, as the term ‘wire-grid
polarizer’ is recognized in the art.” {Id. at 17-18.) More particularly,
Klunder urges that Herman Figure 8a, reproduced on the following page,
12 See Fleming Figure 1; the Examiner also cites Fleming columns 5, 7.
and 12 for textural support (FR 4,11. 8-10).
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Application 12/447,668
{Herman Figure 8a is reproduced below}
{Herman Figure 8a shows normalized transmission spectra of a SiCE
colloidal PCFB at 30° incident angle with linear polarization orientations
ranging from 0° [TM] to 90° [TE]}
shows that light at all polarizations is transmitted through the photonic
crystal, and that the light is therefore not polarized. {Id. at 9-10.)
This is not persuasive of harmful error. Klunder’s analysis does not
consider the PCDB with the metal Lincoln log stack photonic crystal
reflector proposed by the Examiner as obvious. Each parallel metal “log” in
a plane corresponds to the wire of a grid polarizer. The perpendicularly
oriented layers correspond to the two-dimensional wire grid polarizers
illustrated by Klunder in Figure 11 (not reproduced here). The parallel metal
strips in Fleming’s Lincoln log stack would have been expected to behave
towards incident light in a manner similar to the parallel wires in Klunder’s
wire grid polarizers. Klunder has not analyzed the embodiment proposed by
the Examiner, which would appear to have an even stronger polarizing effect
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Application 12/447,668
than the polysilicon photonic crystal reflectors described by Klunder13.
Accordingly, we are not persuaded of harmful error in the appealed rejection
of claim 1.
Klunder urges further that because neither Herman nor Fleming uses
the term “duty cycle,” they fail to show obviousness for claim 7, which
depends from claim 1 and which specifies that the duty cycle (i.e., the ratio
of the width of the space between adjacent wires to the period D1 of the grid
(see Figure 2, not reproduced here, but discussed in our previous Opinion
(Opl, 3)) be less than 0.9 for both the input and the output grid polarizing
reflectors. (Br. 10.)
We are not persuaded of harmful error by these arguments. Although
Fleming does not discuss metal Lincoln log stacks in any detail, Fleming
does discuss the dimensions of polysilicon logs, including the pitch and
spacing (e.g., Fleming col. 7,11. 1-25) for micron wavelengths {id. at col. 6,
11. 40 44). Fleming states that “photonic lattices can be formed [by the
practice of the disclosed invention] having photon bandgaps within the range
of several tens of microns down to perhaps 0.1 microns [100 nm], thereby
covering the regions of the optical spectrum commonly called the far-IR, the
13 Moreover, Klunder appears to assume that a polarizer must provide
complete polarization—but polarization is rarely complete. From Figure 8a,
it appears that the transmission of the 0° polarization (TM) is greater than
the transmission of the 90° polarization (TE) at any given wavelength. In
other words, when an unpolarized beam of light (comprised of waves of all
polarizations having an equal intensity) passes through the PCFB, the 0°-
polarized portion of the unpolarized beam would be transmitted through the
PCFP more than the 90°-polarized portion. Thus, it appears that Figure 8a
shows that the PCFP would induce a partial polarization of an initially
unpolarized beam.
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Application 12/447,668
near-IR, the visible, and the ultraviolet.” {Id. at col. 4,1. 64-col. 5,1. 2.)
Having disclosed that the dimensions of the logs and their spacing is
important in one region of the spectrum, we have no doubt that the routineer
would have been prompted to conduct routine analyses to apply those
teachings to other wavelength regions. Klunder has not come forward with
any evidence indicating that the range of duty cycles from about 0 to
about 0.9 would have been expected to be unusual or not likely to work.14
Accordingly, we are not persuaded of harmful error in the rejection of
claim 7.
Klunder’s remaining “separate arguments” against Rejection A1 of
claims 3 and 4, and against Rejection A2 of claims 15, 20, and 21, are not
substantively distinct from the arguments discussed supra, and we therefore
do not find them convincing of harmful error.
14 Our reviewing court has held that the Examiner may rely on disclosures of
United States Patents. Amgen Inc. v. HoechstMarion Roussel, Inc., 314
F.3d 1313, 1355 (Fed. Cir. 2003) (“[W]e hold a presumption arises that both
the claimed and unclaimed disclosures in a prior art patent are enabled.”);
extended to publications generally: In re Antor Media Corp., 689 F.3d 1282,
1289 (Fed. Cir. 2012) (“we . . . hold that... an examiner is entitled to reject
claims as anticipated by a prior art publication or patent without conducting
an inquiry into whether or not that prior art reference is enabling. . . . the
burden shifts to the applicant to submit rebuttal evidence of
nonenablement.”)
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Application 12/447,668
C. Order
It is ORDERED that the rejection of claims 1-10 and 13-22 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)(l)(iv).
AFFIRMED
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