Ex Parte Tsuchiya et al

Patent Trial and Appeal Board

Feb 29, 2016

12831705 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/831,705 07/07/2010
466 7590
YOUNG & THOMPSON
209 Madison Street
Suite 500
Alexandria, VA 22314
03/02/2016
FIRST NAMED INVENTOR
Tetsuo TSUCHIYA
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
8040-1087-1 2958
EXAMINER
HORNING, JOEL G
ART UNIT PAPER NUMBER
1712
NOTIFICATION DATE DELIVERY MODE
03/02/2016 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):
DocketingDept@young-thompson.com
yandtpair@firs ttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TETSUO TSUCHIYA, SUSUMU MIZUTA,
TOSHIY A KUMAGAI, TOSHIHITO SASAKI, and SEIJI KURASHINA
Appeal2014-003373
Application 12/831,705
Technology Center 1700
Before ROMULO H. DELMENDO, JAMES C. HOUSEL, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of the sole claim in the above-identified application. We have
jurisdiction pursuant to 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is National Institute of
Advanced Industrial Science and Technology (Japan) and NEC Corporation.
Appeal Br. 1.
Appeal2014-003373
Application 12/831,705
BACKGROUND
Appellants' invention relates to "a bolometer-type non-cooling
infrared sensor that changes the temperature of a light-incident portion
thereof by absorption of incident infrared light." Spec. 1. Claim 1 is the
sole claim on appeal:
1. A bolometer-type infrared sensor that changes a
temperature of a light-incident portion thereof by
absorption of incident infrared light so as to change an
electrical resistance value of a resistor by a temperature
change, thereby outputting a signal indicative of a
radiation intensity of the incident infrared light, said
sensor compnsmg:
a bridge structure of an insulating material on an
insulating substrate;
a vanadium oxide thin film on said bridge structure,
said vanadium oxide thin film having a temperature
coefficient of resistance (TCR) of 2.5-3% IK and an
electrical resistivity of 0. 3 Q-cm or less set by irradiated
laser light;
said vanadium oxide thin film having a predetermined
pattern so as to be said resistor; and
a protective layer of an insulating material covering
said vanadium oxide thin film in the predetermined
pattern and said bridge structure.
Appeal Br. 8 (emphasis added).
The Examiner maintains the following grounds of rejection:
I. Claims 1 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over S. Ya Andrushin et al., Formation of Porous Silicon on a
Non-conductive Substrate and Its Use as a Sacrificial Layer, 20
Semiconductor Sci. & Tech. 1217 (2005) [hereinafter Andrushin] in view of
Hongchen Wang et al., Reactive Ion Beams Sputtering of Vanadium Oxides
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Appeal2014-003373
Application 12/831,705
Films.for Uncooled Microbolometer, 26 Int'l J. Infrared & Millimeter
Waves 421 (2005) [hereinafter Wang]. Final Act. 2--4.
II. Claim 1 is alternatively rejected under 35 U.S.C. § 103(a) (2006)
as being unpatentable over Andrushin in view of Wang, and further in view
ofR.T. Rajendra Kumar et al., Pulsed Laser Deposited Vanadium Oxide
Thin Films for Uncooled Infrared Detectors, 107 Sensors and Actuators A
62 (2003) [hereinafter Kumar]. Final Act. 4-5.
Andrushin describes a bolometer design containing a vanadium oxide
film. Andrushin 1221. The layer is produced "in an oxygen atmosphere at
temperatures close to 450 °C," after which the temperature coefficient of
resistance (TCR), a value that "determines the sensitivity of the bolometer,"
is approximately 2% K- 1. Id. However, Andrushin states that "it is known
that annealing of the VOx layer in an oxygen atmosphere at 500-600 °C
transforms it to vanadium dioxide (V02) having a higher TCR." Id.
Wang states that "TCR is an important figure of merit that influences
the performances of uncooled microbolometers," and that "[v]anadium
oxides thin film has been selected for the thermal sensing material owing to
its large TCR, low l/f noise and suitable electrical resistance." Wang 422
(emphasis added). Wang shows data for "[a] series of vanadium oxides thin
films with different resistivity and TCR." Id. at 423. The properties of these
films are plotted in Figure 2, reproduced below:
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Appeal2014-003373
Application 12/831,705
l
Gll40 .. '
g.· <~n'.J,.'":] ................ ~-~ ·"-:;:.... .... J a::
d
b.
' ~H.120 l it . i+ .·
. {··
0.(•1···1·
O.Ot.O .
-,~........,+,..._... .......... ~ • .....-~. ~d~·~~~--~~~ ............ ·-•~<~~·-·~·-i~........-~..--......... -.-·~·~q
·a.01 01 1 f~
R~sl~trvity· ((lhin-cm)
Figure 2 depicts a plot of TCR versus resistivity for the various films,
showing a trend line that passes near the point where TCR is 2.5% K-1 and
resistivity is 0.03 Q·cm. Wang describes a resistivity range of0.1-0.3 Q·cm
as being "desirable," see id. at 424, and states that a "TCR value of 2.5%/K
at room temperature [is] very attractive for bolometer applications, and the
TCR value of 2.5%/K is better than that of other reported," id. at 425.
DISCUSSION
The Examiner finds that Andrushin describes a bolometer design
using a vanadium oxide film and a bridge structure in accordance with the
limitations of the claim, except that it "does not teach what the electrical
resistivity for the vanadium oxide film is." Final Action 3.
The Examiner finds that Wang "teaches that the appropriate resistivity
for vanadium oxide films used in this purpose is 0.1-0.3 ohm-cm," id.
(citing Wang 422, 424), "and that TCR values of2.5%/K are very attractive
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Appeal2014-003373
Application 12/831,705
for bolometer applications," id. (citing Wang 425). The Examiner further
finds that Wang teaches that "higher values, would of course be still better."
Id. The Examiner cites Figure 2 of Wang as exemplifying "a vanadium
oxide film that has a TCR value of about 2.5%/K while having a resistivity
of about 0.3 ohm-cm." Id.
As to the provision in the claim that the vanadium oxide film is "set
by irradiated laser light," see Appeal Br. 8, the Examiner finds reason to
expect that there is no "structural difference necessarily imparted when the
electrical resistivity is set by irradiated laser light," as opposed to the heat
treatment of Andrushin. Final Action 4. The Examiner finds that Andrushin
"teaches that thermal annealing is performed in order to modify the
properties of the vanadium oxide film, specifically to improve its sensitivity
in the bolometer by improving its temperature coefficient of resistance
(TCR)." Id. (citing Andrushin 1221). Based on the above evidence, the
Examiner concludes:
[I]t would have been obvious to a person of ordinary skill
in the art at the time of invention for the vanadium oxide
film of Andrushin to have an electrical resistivity of 0.1-
0.3 ohm-cm and a TCR value of 2.5%/K, since these
values were known in the art to be appropriate and very
desirable for these vanadium oxide films and doing so
would produce no more than predictable results.
Id. at 3-4.
Appellants argue that Wang separately discloses a resistivity range of
0.1-0.3 Q·cm, and a TCR value of 2.5% K-1, but "[t]hese are discussed
separately and there is no indication in the reference that both goals are
achievable in the same vanadium oxide film." Appeal Br. 4. Moreover,
Appellants argue that Figure 2 of Wang "shows a relationship between
resistivity and TCR," but that this figure does not show that both resistivity
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Appeal2014-003373
Application 12/831,705
and TCR goals are achieved at the same time. Id. According to Appellants,
"[t]here is nothing in WANG to indicate that the artisan is capable of
producing these values in combination as claimed, and the Examiner offers
no evidence that the artisan could do so." Id. at 6. Indeed, Appellants argue
that, "according to WANG's explanation, it is impossible to obtain TCR
which deviates from the relation of TCR versus resistivity shown in Figure
2." Reply Br. 3.
Andrushin teaches heat annealing in order to increase the value of
TCR, see Andrushin 1221, whereas the Specification teaches a different
treatment that uses irradiation by laser light, see Spec. 5. While Appellants
argue that their process is capable of producing a film with both a TCR
range of 2.5-3% K-1 TCR and a resistivity of less than 0.03 Q·cm,
Appellants have not directed our attention to any evidence on this appeal
record that the heat annealing process of Andrushin is incapable of doing the
same, particularly in light of the teachings of Wang.
"Where the general conditions of a claim are disclosed in the prior
art," the Federal Circuit has held that"[ d]iscovery of an optimum value of a
result effective variable ... is ordinarily within the skill of the art." In re
Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed. Cir. 2012) (quoting In re
Aller, 220 F.2d 454, 456 (CCPA 1955) and In re Boesch, 617 F.2d 272
(CCPA 1980)). On this record, we are persuaded that the Examiner has
shown that the prior art teaches preferred ranges for both TCR and resistivity
that are within the scope of the claim. On this record, we are also persuaded
that TCR and resistivity are result effective variables, because "TCR is an
important figure of merit that influences the performances of uncooled
microbolometers" and desirably maximized, Wang 422, and as the Examiner
correctly finds, one of ordinary skill in the art would recognize the resistivity
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Appeal2014-003373
Application 12/831,705
range in claim 1 to be "desirable for the electrical design of bolometers."
Answer 4. See Applied Materials, 692 F.3d at 1297 ("A recognition in the
prior art that a property is affected by the variable is sufficient to find the
variable result-effective.") A preponderance of the evidence on this appeal
record shows that a person of ordinary skill in the art would be capable of
varying TCR and/or resistivity over a wide range, by manipulating factors
such as the use of thermal annealing, see Andrushin 1221, or oxygen
concentration and ion source parameters during deposition of vanadium
oxide the film, see Wang 423, 427. Thus, the Examiner has made a prima
facie case that optimizing TCR and resistivity to achieve values according to
the claim would be within the skill of the art.
To overcome the Examiner's rejection, Appellants could have
produced evidence to rebut the Examiner's prima facie case, such as
evidence that the processes disclosed by Andrushin and Wang are incapable
of producing a combination of TCR and resistivity within the scope of the
claim. However, Appellants have not directed our attention to any evidence
on this appeal record sufficient to rebut the Examiner's prima facie case.
We have carefully considered Appellants' argument that Wang teaches that
"it is impossible to obtain TCR which deviates from the relation of TCR
versus resistivity shown in Figure 2." Reply Br. 3. However, Appellants
have not directed our attention to any statement in Wang, or other evidence,
that the results shown in Figure 2 of Wang could not be optimized further by
methods known in the art, such as the use of thermal annealing as taught by
Andrushin. See In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir.
2012) ("[A] prior art printed publication cited by an examiner is
presumptively enabling barring any showing to the contrary by a patent
applicant or patentee.").
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Application 12/831,705
Therefore, we affirm the Examiner's rejection based on the
combination of Andrushin and Wang.
Appellants do not challenge the Examiner's separate findings
regarding the alternative rejection based on the combination of Andrushin,
Wang, and Kumar. See Appeal Br. 6-7. Therefore, we also affirm the
Examiner's alternative rejection.
DECISION
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. § l .136(a)(l )(iv).
AFFIRMED
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