Michael David. Simmonds et al.

Patent Trials and Appeals Board

Oct 4, 2019

13265260 - (D) (P.T.A.B. Oct. 4, 2019)

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.
13/265,260 02/02/2012 Michael David Simmonds 28197 3722
23389 7590 10/04/2019
SCULLY SCOTT MURPHY & PRESSER, PC
400 GARDEN CITY PLAZA
SUITE 300
GARDEN CITY, NY 11530
EXAMINER
RADKOWSKI, PETER
ART UNIT PAPER NUMBER
2883
NOTIFICATION DATE DELIVERY MODE
10/04/2019 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):
Docket@SSMP.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHAEL DAVID SIMMONDS
and MOHMED SALIM VALERA
____________________

Appeal 2018-003337
Application 13/265,260
Technology Center 2800
____________________

Before THU A. DANG, ELENI MANTIS MERCADER, and
HUNG H. BUI, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1, 3, 5–8, and 12–15. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as BAE
SYSTEMS plc. App. Br. 3.
Appeal 2018-003337
Application 13/265,260

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CLAIMED SUBJECT MATTER
The claimed invention is directed to a display device having an optical
waveguide with an input grating of high angular bandwidth and high
reflective efficiency. See Abstract and Spec. 1.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A display device for displaying an image, the device
comprising:
an optical waveguide arrangement for directing image-
bearing light, received from an image source over a range of
angles relative to an injection axis, through the optical
waveguide arrangement for output to form a viewable image;
and
an input grating for diffracting into the optical waveguide
arrangement the received image-bearing light such that all of
the diffracted light is totally internally reflected within the
optical waveguide arrangement and so that image bearing light
output from the optical waveguide arrangement has a field of
view corresponding to said range of angles,
wherein the input grating is a surface relief grating for
diffracting light over said range of angles into the optical
waveguide arrangement, the input grating having a profiled
surface and a layered structure applied thereto comprising a
layer of reflective material providing a reflective surface and at
least one layer of dielectric material, each of the reflective
surface and the at least one layer of dielectric material being
conformal in profile with said profiled surface and disposed
such that the received image-bearing light interacts with both
the at least one layer of dielectric material and the reflective
surface, and
wherein the thickness of the at least one layer of
dielectric material with which the light interacts is configured to
control the angular bandwidth of the input grating such that the
image bearing light that is incident upon the input grating over
said range of angles is diffracted into the optical waveguide
arrangement.
Appeal 2018-003337
Application 13/265,260

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See App. Br., Claims App’x, 15.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Upatnieks US 4,711,512 Dec. 8, 1987
Shimmo US 2002/0044359 A1

Apr. 18, 2002
Perry, Michael (NPL: Multilayer Dielectric Gratings: Increasing the Power
of Light, Science & Technology Review, p. 25, 1995, available at
https://str.llnl.gov/str/pdfs/09 95.2.pdf; hereinafter “Perry”).

THE REJECTION
Claims 1, 3, 5–8, and 12–15 stand rejected under 35 U.S.C § 103(a) as
being unpatentable over Upatnieks in view of Shimmo and Perry.

OPINION
Claim 1 recites the limitation of
wherein the thickness of the at least one layer of dielectric
material with which the light interacts is configured to control
the angular bandwidth of the input grating such that the image
bearing light that is incident upon the input grating over said
range of angles is diffracted into the optical waveguide
arrangement.

See Claim 1. The Examiner quotes Perry to address this limitation by stating
that Perry on page 30 states
[t]he efficiency of a multilayer dielectric grating can be adjusted
for any given wavelength and polarization by altering the phase
retardation properties of the multilayer stack, the depth and shape
of the grating grooves, and the beam’s angle of incidence. We
adjust these properties during manufacture to control the
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distribution of energy among the reflected, transmitted, and
diffracted beams. Diffraction efficiency for specific incident
radiation can be adjusted between 0.01% and 98%.

Final Act. 6 (citing Perry, pg. 30). The Examiner explains that Perry links
angular distribution with diffraction efficiency of reflective diffraction
gratings and points us to Perry quoting “[t]he behavior of a grating is
primarily governed by the spacing and the shape of the grooves as well as by
the optical properties of the metal.” Ans. 4 (citing Perry, pg. 29).
Appellant argues that Perry does not teach or suggest, as alleged by
the Examiner, that the thickness of the top dielectric layer can be configured
to control the angular bandwidth of the grating. App. Br. 6.
A preponderance of the evidence does not support the Examiner’s
finding that Perry teaches or suggests that the thickness of the top dielectric
layer can be configured to control the angular bandwidth of the grating. As
set forth in the section relied on by the Examiner, Perry teaches (1) “the
efficiency of a [] dielectric grating can be adjusted for any given wavelength
and polarization by altering [] the depth and shape of the grating grooves,
and the beam’s angle of incidence” and (2) “[a] grating can be designed to
have nearly any desired efficiency and bandwidth.” Perry p. 30. In other
words, Perry teaches that the depth and the shape of the grating grooves can
change the grating efficiency. However, this cited section of Perry is silent
as to adjusting the thickness of any dielectric layer to control the angular
bandwidth of the grating.
Furthermore, while one skilled in the art may understand that
changing the thickness of any dielectric layer of a diffraction grating may in
turn change the angular bandwidth of the grating, the Examiner is still
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required to articulate a sufficient reason with some rational underpinning to
support a conclusion that a person having ordinary skill in the art would
have combined Perry with Upanieks and Shimmo in the manner claimed by
the Appellant. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)); In re NuVasive, Inc.,
842 F.3d 1376, 1383 (Fed. Cir. 2016) (“‘[C]onclusory statements’ alone are
insufficient and, instead, the finding must be supported by a ‘reasoned
explanation.’” (internal citation omitted)).
Here, the Examiner’s conclusion of obviousness appears to have been
constructed using hindsight, wherein the Examiner appears to have worked
backward to modify Perry to arrive at the claimed invention rather than
showing evidence that would have suggested the claimed invention. See Ex
parte Markovitz, Appeal No. 1999–1942, slip op. at 8–9 (PTAB Sept. 26,
2001). We find that to affirm the Examiner on this record would require us
to engage in some degree of speculation. That is, the Examiner has not
explained, and we are not willing to speculate, how the depth and the shape
of the grating grooves extrapolates to changing the thickness of at least one
layer of dieletric material to control the angular bandwidth of the grating as
required by claim 1.
Accordingly, we are constrained by the record before us and, thus, we
reverse the Examiner’s rejection of claim 1 and for the same reasons the
rejections of claims 3, 5–8, and 12–15.

DECISION
The Examiner’s rejections of claims 1, 3, 5–8, and 12–15 are
reversed.
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DECISION SUMMARY
Claims
Rejected
Basis Affirmed Reversed
1, 3, 5–8, and 12–15 § 103 1, 3, 5–8, and 12–15

REVERSED