Ex Parte WangDownload PDFPatent Trial and Appeal BoardMar 7, 201612850658 (P.T.A.B. Mar. 7, 2016) 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. 12/850,658 08/05/2010 Sean Xiaolu Wang 1276 53048 7590 03/07/2016 BWT PROPERTY, INC. 19 SHEA WAY SUITE 301 NEWARK, DE 19713 EXAMINER LIPITZ, JEFFREY BRIAN ART UNIT PAPER NUMBER 3769 MAIL DATE DELIVERY MODE 03/07/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte SEAN XIAOLU WANG1 __________ Appeal 2014-000134 Application 12/850,658 Technology Center 3700 __________ Before JOHN C. KERINS, BRANDON J. WARNER, and AMANDA F. WIEKER, Administrative Patent Judges. WIEKER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Sean Xiaolu Wang (“Appellant”) appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–6. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellant, the Real Parties in Interest are Sean Xiaolu Wang and BWT Property, Inc. Br. 2. Appeal 2014-000134 Application 12/850,658 2 CLAIMED SUBJECT MATTER The invention concerns a medical laser apparatus. Spec. 1:9. Claim 1, the only independent claim, is illustrative of the subject matter on appeal and recites: 1. A medical laser apparatus with a uniform output beam profile, the medical laser apparatus comprising: a laser light source for producing a laser beam; a light pipe positioned in a path of said laser beam, said light pipe receives said laser beam and mixes and expands said laser beam through total internal reflection to produce an expanded laser beam with a reduced power density; and an optical diffuser, said optical diffuser receives and homogenizes said expanded laser beam to produce an output beam with a uniform intensity distribution. Br. 7–8, Claims App. (emphasis added). REJECTIONS The claims stand rejected as follows: I. Claims 1–3 and 6 under 35 U.S.C. § 102(b) as anticipated by Ishii (US 2005/0213068 A1, pub. Sept. 29, 2005). II. Claim 4 under 35 U.S.C. § 103(a) as unpatentable over Ishii and Komine (US 2005/0078353 A1, pub. Apr. 14, 2005). III. Claim 5 under 35 U.S.C. § 103(a) as unpatentable over Ishii and Park (US 2008/0158906 A1, pub. July 3, 2008). ANALYSIS Anticipation by Ishii – Claims 1–3 and 6 Appellant argues these claims as a group. Br. 4–7. We treat claim 1 as representative, and claims 2, 3, and 6 stand or fall with claim 1. Appeal 2014-000134 Application 12/850,658 3 The Examiner interprets “optical diffuser,” apparently taking a plain meaning approach, as an optical element that scatters light. Final Act. 2; Ans. 4–5. This interpretation is consistent with Appellant’s disclosure in the Specification, which states that the optical diffuser “consist[s] of a large number of microstructures (such as micro-lenses) on its surface” and “functions as the second stage beam homogenizer to further homogenize the laser beam.” Spec. 3:12–14. Appellant’s Specification also discloses that “holographic diffusers and those micro-lens arrays created by laser lithography” are examples of optical diffusers. Id. at 3:15–16. We understand the Examiner’s interpretation to be the broadest reasonable interpretation in light of these disclosures. In re Am. Acad. of Sci. Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004). The Examiner finds that Ishii’s micro lens array 64 is an optical diffuser that, in conjunction with aperture arrays 66/68, scatters light. See Final Act. 2–3 (citing Ishii ¶¶ 62–65, 92–95, 99–103, Figs. 15a–d, Figs. 18a–d); Ans. 4–5 (noting this structure to be “consistent with [the Specification’s] examples of potential optical diffusers” and capable of performing the claimed function). Appellant argues that Ishii’s micro lens array 64 does not function as an optical diffuser, but rather functions as an imaging device that forms an image of digital mirror device 34 (DMD) and “retains the intensity profile of the DMD image instead of homogenizing it.” Br. 4–5.2 2 Appellant also argues that Ishii’s DMD fails to constitute the claimed optical diffuser. Br. 4. The Examiner, however, does not rely on this structure. Ans. 4–5. Appeal 2014-000134 Application 12/850,658 4 We are unpersuaded by Appellant’s argument. As discussed above, Appellant’s Specification states that a micro lens array functions as the claimed optical diffuser. Spec. 3:15–16. The Examiner finds that Ishii discloses a micro lens array that scatters light. Final Act. 2–3. Appellant has not explained persuasively why Ishii’s micro lens array is distinguishable from that disclosed in Appellant’s Specification, or is incapable of functioning as claimed. Indeed, Appellant’s argument that Ishii’s array forms an image does not persuade us that the claimed homogenization is precluded, especially in light of the Examiner’s uncontested finding that “light incident upon a slit [e.g., aperture arrays 66/68] emerges from it with a uniform intensity.” Ans. 5; Final Act. 2. Additionally, Appellant argues that Ishii’s micro lens array 64 “cannot be used as an optical diffuser since every lens in the micro lens array has the same structure,” whereas “the present invention consists of a large number of irregularly structured micro lenses.” Br. 5–6. We are unpersuaded by Appellant’s argument. Appellant provides no evidence to support the contention that micro lens arrays having irregular structures are the only micro lens arrays capable of functioning as optical diffusers. “Attorney’s argument in a brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Although Appellant’s Brief provides one example of an irregularly structured array that purportedly functions as an optical diffuser, this does not demonstrate that regularly structured arrays are incapable of functioning as claimed. See Br. 5–6. Furthermore, Appellant’s Specification broadly discloses that “micro-lens arrays created by laser lithography” function as optical diffusers, without any discussion of the regularity or irregularity of those Appeal 2014-000134 Application 12/850,658 5 lenses. Spec. 3:15–16. Therefore, Appellant’s statement that the present invention consists of irregularly structured micro lenses is unsupported by the Specification, and we decline to read into the claim this unrecited limitation. Finally, Appellant argues that Ishii teaches away from the claimed invention by teaching high extinction ratios and high sharpness. Br. 6–7. However, “the question whether a reference ‘teaches away’ from the invention is inapplicable to an anticipation analysis.” Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998). Therefore, sustain the Examiner’s rejection of claim 1, and claims 2, 3, and 6 fall with claim 1. Obviousness over Ishii and Komine – Claim 4 Appellant does not present specific argument regarding the rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable over Ishii and Komine. See Br. 4. Accordingly, Appellant has waived any additional argument as to that claim. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Therefore, we sustain the Examiner’s rejection of claim 4. Obviousness over Ishii and Park – Claim 5 Appellant does not present specific argument regarding the rejection of claim 5 under 35 U.S.C. § 103(a) as unpatentable over Ishii and Park. See Br. 4. Accordingly, Appellant has waived any additional argument as to that claim. Frye, 94 USPQ2d at 1075. Therefore, we sustain the Examiner’s rejection of claim 5. Appeal 2014-000134 Application 12/850,658 6 DECISION The rejection of claims 1–3 and 6 under 35 U.S.C. § 102(b) as anticipated by Ishii is AFFIRMED. The rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable over Ishii and Komine is AFFIRMED. The rejection of claim 5 under 35 U.S.C. § 103(a) as unpatentable over Ishii and Park 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)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation