Ex Parte Long et alDownload PDFPatent Trial and Appeal BoardNov 28, 201713165677 (P.T.A.B. Nov. 28, 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. 13/165,677 06/21/2011 Michael LONG 89779/US-DIV 4326 112458 7590 11/30/2017 Global OLED Technology LLC 13921 Park Center Road Suite 380 Herndon, VA 20171 EXAMINER JOHNSON, BENJAMIN W ART UNIT PAPER NUMBER 3749 NOTIFICATION DATE DELIVERY MODE 11/30/2017 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): patents @ globaloledtech. com j gisone @ globaloledtech. com b wkim @ globaloledtech. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL LONG and BRUCE E. KOPPE Appeal 2016-007408 Application 13/165,677 Technology Center 3700 Before: LYNNE H. BROWNE, JILL D. HILL, and BRENT M. DOUGAL, Administrative Patent Judges. DOUGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a final rejection of claims 14-21 under 35 U.S.C. § 103(a) as being unpatentable over Yang (US 2005/0072361 Al, pub. Apr. 7, 2005), Van Slyke (US 2003/0008071 Al, pub. Jan. 9, 2003), and Witzman (US 6,202,591 Bl, iss. Mar. 20, 2001). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2016-007408 Application 13/165,677 CLAIMED SUBJECT MATTER The claims are directed to an apparatus for vaporizing material. Claim 14, reproduced below, is illustrative of the claimed subject matter: 14. An apparatus for providing uniform vaporization of a column of vaporizable material comprising: a) a chamber; b) a heating element within the chamber for providing vaporization energy to a proximate first portion of the column of vaporizable material; c) a current source for providing heating energy to the heating element; d) a feed apparatus for feeding the column of vaporizable material, at a substantially continuous but varying feed rate, toward the heating element; and e) a cold sink proximate a second portion of the column of vaporizable material for dissipating heat absorbed by the second portion while material is being vaporized; wherein the second portion is farther from the heating element than is the first portion of the column of vaporizable material; wherein the heating element has a low thermal mass and the current source is a constant current source; and wherein the heating element and the current source are configured to maintain a constant vaporization rate. OPINION Claims 14 and 21 are independent and claims 15-20 depend from claim 14. Appellants separately argue the patentability of claims 14, 19, and 21, which arguments are addressed below. 2 Appeal 2016-007408 Application 13/165,677 Claim 14 Constant Current Source The Examiner finds that Yang teaches a constant current source, and as an alternative, that one of skill in the art would find it obvious to combine Van Slyke’s constant current source with Yang. Final Act. 4-5. Appellants contest both of these positions. Appeal Br. 14. Yang teaches a heat source 30 that “provides constant electrical resistance” and that has current applied to it “at a constant voltage.” Yang 76. The Examiner reasons that “if the heating element has a constant resistance and a constant voltage applied to it, the current source necessarily must be constant due to the proportional relationships of [Ohm’s law].” Final Act. 4. Appellants do not contest the Examiner’s reasoning, but rather contest the teachings of Yang. Appeal Br. 14-15; Reply Br. 5-6. Appellants argue that in fact the resistance would vary over a wide range of temperatures. Appeal Br. 15. Appellants also assert that “[o]ne of ordinary skill in the art would recognize that the heat source 30 cannot be expected to maintain constant resistance over such a wide range of temperatures.” Id. Appellants then speculate “that Yang’s intention may be that the heat source resistance does not degrade over the lifetime of Yang’s apparatus,” not that Yang’s device actually has a constant resistance. Id. Appellants offer no evidence to support their arguments that Yang does not teach constant resistance, “despite Yang explicitly teaching that the heating element used exhibits constant resistance.” Ans. 13 (citing Yang 12). Appellants’ statement is merely attorney argument, with no supporting evidence. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) 3 Appeal 2016-007408 Application 13/165,677 (“Attorney’s argument in a brief cannot take the place of evidence.”). Thus, Appellants’ argument does not inform us or error in the Examiner’s rejection. Appellants also argue that there is no reason to combine Van Slyke’s constant current source with Yang. Appeal Br. 15-16. Appellants assert that “the person of ordinary skill in the art would not perceive any benefit to be gained by adapting any feature from Van Slyke into the apparatus of Yang.” Id. at 16. Appellants further argue that Yang already achieves uniform coatings, and that the teachings of Van Slyke are unable to improve upon those coatings. Id. The Examiner responds that “uniformity of the coating is not the only possible metric used to assess quality of the coating” and discusses the benefit of Van Slyke’s “maintaining a stable vapor stream.” Ans. 14-15. These findings of the Examiner are not addressed by Appellants. See generally Reply Br. 6. Thus, Appellants have not shown that there is no reason to combine Van Slyke’s constant current source with Yang or that the Examiner’s reasoning is incorrect. Thus, Appellants’ argument does not inform us or error in the Examiner’s alternative grounds for the rejection. Configured to Maintain a Constant Vaporization Rate Appellants argue that the phrase “wherein the heating element and the current source are configured to maintain a constant vaporization rate” is a structural limitation and should be afforded patentable weight. Appeal Br. 10 (emphasis omitted). Appellants also state that “the prior art fails to teach or suggest this limitation.” Id. at 12. 4 Appeal 2016-007408 Application 13/165,677 The Examiner finds that this phrase is a functional limitation “because the limitation indicates a manner of operating the device.” Final Act. 5. The Examiner then determines that the cited prior art teaches all of the claimed structural limitations and would therefore “be capable of performing said function of maintaining a constant vaporization rate.” Id. at 6; see also Final Act. 13-14. Appellants point to the Specification and argue that the structure required by this limitation is that “the current source must have the proper level of current according to characteristics of the heating element.” Id. at 11 (citing Spec. 6,11. 14-16 and 12,11. 17-21) (footnote omitted). Appellants further argue that this further limits the scope of the claimed phrase “the current source is a constant current source.” Id. (emphasis omitted). The “proper level of current” is not structure, but rather a desired functional characteristic. Although “[a] patent applicant is free to recite features of an apparatus either structurally or functionally . . . , choosing to define an element functionally . . . carries with it a risk.” In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). This risk is that Appellants bear the burden to prove that the prior art does not possess the functional characteristic, once the Examiner has shown a sound basis for believing the claimed structure to be the same as the prior art structure. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). In view of the Examiner’s findings and the teachings from the Specification identified by the Examiner (Final Act. 5-6, 13-14; Ans. 17), we determine that the Examiner has provided a sound basis for believing that the claimed structure is the same as that identified by the Examiner in 5 Appeal 2016-007408 Application 13/165,677 the cited prior art which the Examiner found is capable of performing the claimed function. Although Appellants state “the prior art fails to teach or suggest this limitation,” Appellants do not explain how this limitation distinguishes over the cited prior art. Id. at 12. Appellants’ description of the limitation in functional terms does not identify any structure required by the claim. Further, Appellants’ statement that the functional limitations in the claim “captures the essence of the instant invention” does not show what structural features are missing in the cited prior art. Id. at 11. Thus, Appellants have not shown error in the Examiner’s determination that the prior art is capable of performing the claimed functional characteristic. Varying Feed Rate Appellants argue that “ feeding the column of vaporizable material, at a substantially continuous but varying feed rate, toward the heating element” is not an inherent property of an auger based feed device and thus not inherent in Yang’s apparatus. Appeal Br. 12-13. The Examiner finds that “feeding the column of vaporizable material, at a substantially continuous but varying feed rate, toward the heating element” of claim 14 is a functional limitation. Ans. 15. The Examiner finds that Appellants’ Specification teaches that this function is performed by an auger and that Yang also teaches an auger. Id., see also Final Act. 3. The Examiner then determines that the auger of Yang is “capable of feeding the column of vaporizable material, at a substantially continuous but varying feed rate.” Ans. 15. 6 Appeal 2016-007408 Application 13/165,677 As discussed above, Appellants bear the burden to prove that the prior art does not possess a functional characteristic, once the Examiner has shown a sound basis for believing the claimed structure to be the same as the prior art structure. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). Though Appellants have argued that the claimed function is not inherent in Yang, they offer no evidence or argument that Yang is not capable of performing this function. Appellants also do not identify structural differences between Yang and the claimed invention arising from the function of “feeding the column of vaporizable material, at a substantially continuous but varying feed rate, toward the heating element.” Thus, we are not informed of error in the Examiner’s rejection. Appellants also argue that there is no reason “why one of ordinary skill in the art would modify Yang’s apparatus, which already has constant feed rate, and worsen it to a condition of varying feed rate.” Appeal Br. 13- 14. However, Appellants have not identified any structural changes that would be required of Yang’s apparatus to perform the function of “feeding the column of vaporizable material, at a substantially continuous but varying feed rate, toward the heating element.” Thus, Appellants have not shown that Yang’s apparatus requires any modification. Appellants’ claim 14 is an apparatus claim and not a method claim. As such, the claim does not cover a method of using the apparatus at a varying feed rate as per Appellants’ argument. Rather the claim is directed to an apparatus that is differentiated from the prior art if the prior art device is not capable of performing the recited functions. 7 Appeal 2016-007408 Application 13/165,677 Claim 19 Feed Rate In addition to arguing that claim 19 is allowable for the same reasons as claim 14, Appellants also argue that a periodic oscillation of the feed rate is not inherent. Appeal Br. 17. Similar to above discuss of “varying the feed rate,” “periodic oscillation of the feed rate” is a functional limitation. Appellants do not identify any structural differences between Yang and claim 19. Thus, we are not informed of Examiner error in the rejection of claim 19. Claim 21 Constant Current Source and Varying Feed Rate Appellants essentially repeat their arguments discussed above concerning the “constant current source” and “varying feed rate” for the patentability of claim 21. Appeal Br. 20-21. We do not find these arguments convincing for the reasons previously discussed. Configured to Self-Compensate & Maintain a Constant Vaporization Rate Appellants argue that the phrase wherein the apparatus is configured so that as the feed rate varies, (i) the temperature of the heating element, (ii) heat transfer from the heating element to the column of vaporizable material, and (iii) heat transfer through the column of vaporizable material to the cold sink, self-compensate and a constant vaporization rate is maintained 8 Appeal 2016-007408 Application 13/165,677 is a structural limitation and should be afforded patentable weight. Appeal Br. 18 (emphasis omitted). Appellants also state “the prior art fails to teach or suggest this limitation.” Id. at 20. In support, Appellants repeat the same arguments and point to the same teachings of the Specification discussed above related to “wherein the heating element and the current source are configured to maintain a constant vaporization rate” of claim 14. Thus, Appellants state that the above limitation requires the function of the “proper level of current,” but do not identify any structural differences between claim 21 and Yang. We do not find these arguments convincing for the reasons previously discussed. DECISION The Examiner’s rejection of claims 14-21 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation