Ex Parte Wang

Patent Trial and Appeal Board

Mar 7, 2016

12850658 (P.T.A.B. Mar. 7, 2016)

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

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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.
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Application 12/850,658

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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.
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Application 12/850,658

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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
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Application 12/850,658

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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.
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Application 12/850,658

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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