11397680 (B.P.A.I. Nov. 10, 2009)

Ex Parte Watatani

Board of Patent Appeals and InterferencesNov 10, 2009

11397680 (B.P.A.I. Nov. 10, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte CHIKARA WATATANI ____________ Appeal 2009-000193 Application 11/397,680 Technology Center 2800 ____________ Decided: November 10, 2009 ____________ Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and MICHAEL P. COLAIANNI, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner's final rejection of claims 1 through 4.1 We have jurisdiction pursuant to 35 U.S.C. § 6. We REVERSE. 1 The Examiner's rejection of claims 6-10 under § 102(b) has been withdrawn. (Ans. 3). Appeal 2009-000193 Application 11/397,680 2 STATEMENT OF THE CASE The subject matter on appeal is directed to a semiconductor laser element. Claim 1 is illustrative: 1. A semiconductor laser element comprising: a substrate of a first conductivity type and having a planar major surface; a ridge part including a first semiconductor layer of a first conductivity type, an active layer that generates a laser beam, and a second semiconductor layer of a second conductivity type, sequentially laminated in this order and disposed on the major surface of said substrate, said ridge part having side surfaces in (111) crystalline planes of said first and second semiconductor layers and said active layer, said side surfaces forming a predetermined angle with the major surface of said substrate; a current blocking structure including a third semiconductor layer of the first conductivity type, a fourth semiconductor layer of the second conductivity type, and a fifth semiconductor layer of the first conductivity type, sequentially laminated, in this order, and burying both side surfaces of said ridge part, said fourth semiconductor layer being enveloped by said third semiconductor layer and said fifth semiconductor layer so that said fourth semiconductor layer does not contact either side surface of said ridge part; and a sixth semiconductor layer of the second conductivity type covering an upper surface of said ridge part and an upper surface of said current blocking structure. As evidence of unpatentability of the claimed subject matter, the Examiner relies upon the following references: Takaoka 5,822,349 Oct. 13, 1998 Tomonobu Tsuchiya et al., "In situ Deep Etching for an InGaAlAs Buried Heterostructure by Using HCl Gas in a Metalorganic Vapor Phase Epitaxy Reactor," Japanese Journal of Applied Physics., Vol. 43, No. 10A, pp. L 1247- L1249 (2004) (hereinafter "Tsuchiya"). Appeal 2009-000193 Application 11/397,680 3 The Examiner rejects claims 1-3 under 35 U.S.C. § 102(b) as anticipated by Takaoka and claim 4 under 35 U.S.C. § 103(a) as unpatentable over Takaoka as applied to claim 1 above in view of Tsuchiya.2 ISSUE Has Appellant shown reversible error in the Examiner's determination that Takaoka teaches a ridge part having side surfaces in (111) crystalline planes of the first and second semiconductor layers and the active layer as required by claim 1? We decide this issue in the affirmative. FINDINGS OF FACT (FF) 1. The originally filed Specification discloses that sides of the ridge part in (111) crystalline planes are formed directly from the ridge structure, which includes, inter alia, a p-type InP clad layer, an n-type InP clad layer, and an active layer, by etching the layers of the ridge to form side surfaces in (111) crystalline planes. (Spec. 6-7, and 10). 2. Takaoka's Figure 4 is reproduced below: 2 We note that the Examiner's inclusion of claims 6-10 in the statements of rejection at pages 4 and 7 of the Answer is harmless error since it is apparent from page 3 of the Answer that the rejections of these claims have been withdrawn. Appeal 2009-000193 Application 11/397,680 4 Takaoka's Figure 4 is said to depict a sectional view of a semiconductor laser. In this regard, Takaoka's Figure 4 illustrates a p-type InP substrate 1, a p- type InP buffer layer 2, an InGaAsP active layer 3, and an n-type InP cladding layer 4. (Takaoka, Fig. 4 and col. 6, l. 55 to col. 7, l. 8). A p-type InP buried layer 5, n-type InP current blocking layer 6, and a p-type InP current blocking layer 7 are sequentially formed on the side surfaces of, inter alia, the p-type InP buffer layer 2, the InGaAsP active layer 3, and the n-type InP cladding layer 4. Id. 3. Takaoka states that [A] (111) B face . . . appear[s] on the side surfaces of the mesa stripe when the p-type InP buried layer 5 is formed as the first layer. The Se-doped n-type InP current blocking layer 6 as the second layer hardly grows on the (111) B face and the (221) B face on the side surfaces of the mesa stripe. (Takaoka, col. 7, ll. 41-46). In this regard, Takaoka teaches that these side surfaces are the top surfaces of the p-type InP buried layer 5, which contact the n-type InP current blocking layer 6. (See Takaoka, col. 2, ll. 5-15, col. 7, ll. 41-46, and Figs. 2 and 4). Appeal 2009-000193 Application 11/397,680 5 PRINCIPLES OF LAW During examination, "claims . . . are to be given their broadest reasonable interpretation consistent with the specification, and . . . claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under 35 U.S.C. § 102, “[a] claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987). ANALYSIS AND CONCLUSION We begin by noting that claim 1 requires a "ridge part having side surfaces in (111) crystalline planes of said first and second semiconductor layers and said active layer" feature. Giving this claim feature its broadest reasonable interpretation consistent with the Specification, we determine that this claim feature requires that the sides of the ridge part in (111) crystalline planes be formed directly from and of the layers of the ridge part, which includes first and second semiconductor layers and an active layer. This is a reasonable interpretation in light of the Specification as it plainly requires that the sides of the ridge part in (111) crystalline planes are formed directly from the layers that comprise the ridge part to form side surfaces in (111) crystalline planes. (FF 1). The Examiner determines that the teachings of Takaoka meet the "ridge part having side surfaces in (111) crystalline planes of said first and second semiconductor layers and said active layer" feature recited in claim 1 because it Appeal 2009-000193 Application 11/397,680 6 "clearly teaches a (111) B face on the side surface of the mesa stripe which is grown on a planar surface . . ." (Ans. 4, 5, and 9). Thus, the Examiner determines that Takaoka expressly teaches the disputed claim limitation. However, the only citation the Examiner provides in support of this finding is to column 7, lines 41-49 of Takaoka. (Ans. 9). While Takaoka states at the portion relied on by the Examiner that "a (111) B face . . . appear[s] on the side surfaces of the mesa stripe," these side surfaces are the top surfaces of the p-type InP buried layer 5 (third semiconductor layer), which contact the n-type InP current blocking layer 6 (fourth semiconductor layer). These (111) B face side surfaces do not meet the disputed claim feature, which has been properly construed above, because they are not are not formed directly from and of the side surfaces of Takaoka’s layers that correspond to the claimed ridge part (i.e., Takaoka's p-type InP buffer layer 2 (first semiconductor layer), n-type InP cladding layer 4 (second semiconductor layer) and InGaAsP active layer 3 (active layer)). (FF 2-3). Indeed, as correctly stated by Appellant, "[t]o the extent Takaoka even mentions . . . the presence of (111)B faces, those faces appear on grown layers, and are not part of the ridge." (App. Br. 10). Thus, the Examiner directs us to no express teaching in Takaoka that meets the disputed claim limitation of a ridge part having side surfaces in (111) crystalline planes. Thus, it follows that Appellant has shown reversible error in the Examiner's determination that Takaoka teaches a ridge part having side surfaces in (111) crystalline planes of the first and second semiconductor layers and the active layer as required by claim 1. Because the Examiner relies on, inter alia, the findings relating to claim 1 for the § 103(a) rejection and does not provide any findings as to how Tsuchiya Appeal 2009-000193 Application 11/397,680 7 would meet the disputed claim feature, we reverse all of the rejections made by the Examiner. ORDER In summary, all of the rejections made by the Examiner are reversed. REVERSED cam LEYDIG VOIT & MAYER, LTD 700 THIRTEENTH ST., N.W. SUITE 300 WASHINGTON, DC 20005-3960