13380428 (P.T.A.B. Oct. 17, 2017)

Ex Parte Windischberger et al

Patent Trial and Appeal BoardOct 17, 2017

13380428 (P.T.A.B. Oct. 17, 2017)

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. 13/380,428 12/22/2011 Susanne Windischberger 065722-0089 8906 19227 7590 Dykema Gossett PLLC 10 South Wacker Drive Suite 2300 Chicago, IL 60606 10/19/2017 EXAMINER DABNEY, PHYLESHA LARVINIA ART UNIT PAPER NUMBER 2655 NOTIFICATION DATE DELIVERY MODE 10/19/2017 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): ipmail @ dykema. com szeller @ dykema. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SUSANNE WINDISCHBERGER and MARIA PAPAKYRIACOU Appeal 2017-005259 Application 13/380,428 Technology Center 2600 Before DAVID M. KOHUT, KAMRAN JIVANI, and SCOTT E. BAIN, Administrative Patent Judges. KOHUT, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review, under 35 U.S.C. § 134(a), of the Examiner’s Final Rejection of claims 1—3, 5—11, and 13—18.1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Claims 4 and 12 were previously cancelled. Appeal 2017-005259 Application 13/380,428 INVENTION “This invention relates to micro speakers, for example[,] for use in reproducing sound in microelectronic equipment such as mobile phones[.]” Spec. 1. Claim 1 is representative and is reproduced below. 1. A speaker comprising a permanent magnet, and a coil positioned around the permanent magnet and attached to a membrane, wherein the membrane is a single layer monolithic structure formed from an elastomer of thickness less than 0.3mm and with a Young’s modulus below 100 MPa. REJECTIONS The Examiner rejects claims 1—3, 6—11, and 13, under 35 U.S.C. § 103(a), as obvious over Green (US 2004/0057596 Al; Mar. 25, 2004) and Klein (US 7,644,801 B2; Jan. 12, 2010). Final Act. 2-7. The Examiner rejects claims 15—18, under 35 U.S.C. § 103(a), as obvious over Green, Klein, Kagawa (US 2009/0122379 Al; May 14, 2009), and Saito (US 2009/0028376 Al; Jan. 29, 2009). Final Act. 7-9. The Examiner rejects claims 5 and 14, under 35 U.S.C. § 103(a), as obvious over Green, Klein, and Saito. Final Act. 10-11. ANALYSIS Independent claim 1 recites, in relevant part, “a membrane, wherein the membrane is a single layer monolithic structure formed from an elastomer.” Independent claims 10 and 15 recite a similar limitation. Claims 2, 3, 5—9, and 16—18 are dependent upon claim 1. Claims 11, 13, and 14 are dependent upon claim 10. The Examiner finds that Green teaches constructing the single layer monolithic membrane from an elastomer by using silicon micromachined 2 Appeal 2017-005259 Application 13/380,428 technology. See e.g., Final Act. 2. Specifically, the Examiner finds that Hopcroft supports the finding that silicon has elastomeric/rubber qualities. Ans. 3. Additionally, the Examiner finds that micromachining technology dopes silicon to produce “silicon’e.”’ Ans. 3. Appellants argue that the above combination of Green and Klein fails to teach or suggest a membrane that is a single layer monolithic structure formed from an elastomer because silicon micromachined technology does not create an elastomer. App. Br. 3; Reply Br. 2. Appellants contend that the Examiner errs in fmding“[s]ilicon is elastomeric” (Final Act. 11) because elemental silicon is not a polymer and does not display “rubber-like elasticity.” App. Br. 3-4. Additionally, Appellants contend that silicon has a Young’s modulus approaching that of stainless steel or nickel; proving that silicon cannot be elastomeric. App. Br. 4. We agree with Appellants. Green does not teach the cited “silicon micromachined technology” produces the claimed membrane’s elastomeric properties. See Green 133 (only discussion of micromachining). Green merely states that “piezoelectric technology or silicon micromachined technology” are each a viable technique for fabricating speakers that generate directional and unipolar pressure pulses. See id. at || 9 (unipolar), 33 (directional). Although each of Green’s embodiments comprises a “flexible paper or plastics diaphragm[]” (id. at || 23, 25, 28), thereby teaching a diaphragm (i.e., membrane), the Examiner does not show, nor do we find, that the diaphragm is formed from an elastomeric material, such as silicone. Without additional findings in the record before us, we are unable to discern in the Examiner’s rejection a clearly articulated reason with rationale underpinning addressing how and why one of ordinary skill in the 3 Appeal 2017-005259 Application 13/380,428 art would understand Green’s diaphragm as teaching or suggesting the claim limitation for which it is cited. For the foregoing reasons, we do not sustain the Examiner’s rejections. DECISION We reverse the Examiner’s rejection of claims 1—3, 5—11, and 13—18. REVERSED 4