Sony Corporation

Patent Trials and Appeals Board

May 5, 2020

13956054 - (D) (P.T.A.B. May. 5, 2020)

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.
13/956,054 07/31/2013 Shinjiro KAMEDA 6810-860-CON 2630
110647 7590 05/05/2020
Sheridan Ross P.C.
Bradley M. Knepper
1560 Broadway
Suite 1200
Denver, CO 80202
EXAMINER
PIZARRO CRESPO, MARCOS D
ART UNIT PAPER NUMBER
2814
NOTIFICATION DATE DELIVERY MODE
05/05/2020 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):
CKline@sheridanross.com
edocket@sheridanross.com
sony@sheridanross.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte SHINJIRO KAMEDA and EIICHI FUNATSU
____________
Appeal 2019-002928
Application 13/956,054
Technology Center 2800
____________
Before LINDA M. GAUDETTE, MONTÉ T. SQUIRE, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 7–12 of Application 13/956,054, which

1 In our Decision, we refer to the Specification (“Spec.”) of Application No.
13/956,054 filed July 31, 2013, citing to the published version of the
application; the Non-Final Office Action dated Apr. 19, 2018 (“Non-Final
Act.”); the Appeal Brief filed Sept. 19, 2018 (“Appeal Br.”); the Examiner’s
Answer dated Dec. 31, 2018 (“Ans.”); and the Reply Brief filed Feb. 28,
2019 (“Reply Br.”).
2 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 SONY
SEMICONDUCTOR SOLUTIONS CORPORATION. Appeal Br. 2.
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constitute all the claims pending in this application. We have jurisdiction
under 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.
The subject matter of the invention relates to solid-state imaging
devices which include a photoelectric converting portion and a charge
converting portion for converting charges generated at the photoelectric
converting portion (such as a photodiode) into a pixel signal. Spec. ¶ 3.
According to the Specification, electrons/holes—termed “dark current”—
may be generated due to a temperature change, with dark current being a
main source of noise in the image sensor that may influence image quality.
Spec. ¶ 6. Dark current may occur in both a photodiode and a floating
diffusion portion. Spec. ¶ 6. When dark current occurs (depending on a
temperature and an accumulation time), a signal value is output in an optical
black state, i.e., a state without exposure changes depending on a
temperature and an accumulation time, so that a reference optical black level
changes to affect contrast of images. Spec. ¶ 6.
Most image sensors include an effective pixel (or “aperture pixel”) in
an effective pixel area and a black reference pixel (an “OB (Optical Black)
pixel”) that outputs an optical black level, formed on one device. Spec. ¶ 8.
The OB pixel has the same structure as that of the effective pixel, but light is
shielded in the OB pixel with a light-shielding film formed on a wiring, with
the result that an optical black level can be output for each frame by reading
a signal of the OB pixel. Spec. ¶ 8. Therefore, even if temperature change
causes a change in dark current, a reference contrast level can be estimated
using the effective pixel based on the black level of the OB pixel, preventing
deterioration of the image due to dark current. Spec. ¶ 8.
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If the amount of dark current of the OB pixel and that of the effective
pixel are different from each other due to differences in surface level
between the pixels, the amount of dark current of the OB pixel as the
reference for the optical black level may not be applied to the effective pixel,
because the assumption that the amount of dark current of the OB pixel and
that of the effective pixel are equal is no longer accurate. Spec. ¶ 20.
If a pixel includes a photodiode and a floating diffusion portion, dark
current may be generated at both the photodiode and the floating diffusion
portion. Spec. ¶ 22. The sum of an amount of dark current caused in the
photodiode and that caused in the floating diffusion portion is read as a
signal. Spec. ¶ 22. If the shape of the effective pixel (photodiode and
floating diffusion portions) and that of the OB pixel (photodiode and floating
diffusion portions) are identical to each other (as in related art shown in FIG.
2 and FIGS. 3A and 3B), it may be difficult to make an amount of dark
current of the aperture pixel and that of the OB pixel uniform due to
differences in surface level between the pixels. Spec. ¶¶ 21, 22.
The Specification relates the desire to provide a solid-state imaging
device capable of outputting an optical black level that does not fluctuate
depending on a temperature and an accumulation time, and to reduce the
influence on an image’s contrast by adjusting a difference in the amount of
dark current generated at an effective pixel and generated at an OB pixel.
Spec. ¶ 25.
Claim 7, reproduced below with key limitations italicized, represents
the claimed subject matter:
7. A solid-state imaging device comprising:
an imaging region configured to include a plurality of
pixels arranged in a two-dimensional array, wherein the
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imaging region includes a plurality of effective pixels and a
plurality of black reference pixels;
at least one of the effective pixels and the black reference
pixels having a photoelectric conversion portion and a floating
diffusion portion;
the floating diffusion portion for the effective pixel is
different in size or shape from the floating diffusion portion in
the black reference pixel in accordance with an amount of dark
currents so that a dark current associated with the black
reference pixel and a dark current associated with the effective
pixel are substantially equivalent;
a first isolation region between the floating diffusion
portion of the effective pixel and the photoelectric conversion
portion of the black reference pixel; and
a second isolation region between the floating diffusion
portion of the black reference pixel and a photoelectric
conversion portion of an adjacent black reference pixel;
wherein the first isolation region is smaller than
the second isolation region.
Appeal Br. 16 (Claims App.).
REFERENCES
The Examiner relies on the English-language translation of JP
2006147816 A to Yagi, et al.,3 published June 8, 2006, in rejecting claims
7–9, 11, and 12 as obvious under 35 U.S.C. § 103(a). Non-Final Act. 5.

3 For reasons unclear to us, the Examiner refers to the reference as
“Mabuchi.” See Non-Final Act. 5. However, according to the
English-language translation available to us, none of the inventors is named
“Mabuchi.” We refer to the reference as “JP ’816.”
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REJECTIONS
The Examiner maintains the following rejections: (1) claims 7–12 as
lacking written description under 35 U.S.C. § 112, first paragraph for
recitation of the phrase “the first isolation region is smaller than the second
isolation region;” (2) claim 10 as lacking written description under 35
U.S.C. § 112, first paragraph for recitation of the phrase “the size of the
photoelectric conversion portions of the effective and black pixels is the
same;” and (3) claims 7–9, 11, and 12 under 35 U.S.C. § 103(a) as obvious
over JP ’816. See Non-Final Act. 3–6.
DISCUSSION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011))
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the [E]xaminer’s rejections.”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error in the Examiner’s
rejections.
A. Rejections for failing to comply with the written description
requirement
The Examiner finds that the ’054 Application fails to provide written
description for “the first isolation region is smaller than the second isolation
region,” a limitation in all pending claims. Non-Final Act. 3. The Examiner
also finds that the ’054 Application lacks written description of “a size of the
photoelectric conversion portion in the effective pixel is the same as a size of
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the photoelectric conversion portion of the black reference pixel,” as recited
in claim 10. Id.
In relation to the rejections for lack of written description, Appellant
contends that drawings may provide the requisite written description.
Appeal Br. 4–5. Specifically, Appellant argues (id. at 4–6) that FIG. 6 of the
’054 Application, reproduced below, provides written description of the
disputed limitations:

FIG. 6 is a cross-sectional view of a schematic diagram showing a
CMOS image sensor according to an embodiment of the invention. Spec.
¶¶ 33–34. FIG. 6 shows effective pixel (36) separated by element isolating
area (42) is formed on effective pixel area (35) of semiconductor substrate
such as a silicon substrate (41), and OB pixel (38), similarly separated by
element isolating area (42), is formed on optical black area (37). Spec. ¶ 43.
Effective pixel (36) includes photodiode (PD) (43) as a photoelectric
converting portion and a plurality of MOS transistors (a transfer transistor
Tr1 alone is shown in FIG. 6). Transfer transistor Tr1 includes a
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semiconductor area as floating diffusion (FD) portion (44), and transfer gate
electrode (45) formed through photodiode (43) and gate insulated film.
Spec. ¶ 43. OB pixel (38) includes photodiode (PD) (53) as a photoelectric
converting portion and a plurality of MOS transistors (transfer transistor Tr2
alone is shown in FIG. 6). Transfer transistor Tr2 includes a semiconductor
area as floating diffusion (FD) portion (54) and transfer gate electrode (55)
formed through photodiode (53) and the gate insulated film. Spec. ¶ 43. In
optical black area (37), light-shielding film (49) made of metal such as
aluminum is formed above multilayer wiring (48). Spec. ¶ 44. In order to
make the amount of dark current of effective pixel (36) equal to that of OB
pixel (38), the shape of floating diffusion (FD) portion (44) in effective pixel
(36) is made different from that of floating diffusion (FD) portion (54) in OB
pixel (38). Spec. ¶ 44.
1. “the first isolation region is smaller than the second
isolation region”
Claim 7 is the sole independent claim, and recites “the first isolation
region is smaller than the second isolation region.” Appeal Br. 16 (Claims
App’x). The “first isolation region” is between the floating diffusion portion
of the effective pixel and the photoelectric conversion portion of the black
reference pixel. Id. The “second isolation region” is between the floating
diffusion portion of the black reference pixel and a photoelectric conversion
portion of an adjacent black reference pixel. Id.
Appellant does not argue for separate patentability of any claim based
on this rejection. See id. at 4–6. We select claim 7 as representative. 37
C.F.R. § 42.37(c)(1)(iv). Claims 8–12 stand or fall with claim 7.
Referencing FIG. 6 of the ’054 Application, Appellant contends:
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[T]he isolation region 42 between FD 44 and PD 53 is smaller
than the isolation region 42 between FD 54 and another PD 53.
As noted above, case law has established that drawings alone
may provide sufficient written description of an invention. Here,
Fig. 6 alone provides sufficient written description for “the
first isolation region is smaller than the second isolation region.”
Id. at 5; see also Reply Br. 5 (“An applicant may show possession of an
invention by disclosure of drawings or structural chemical formulas that
are sufficiently detailed to show that applicant was in possession of the
claimed invention as a whole.”), 6 (“Fig. 6 alone is sufficiently detailed to
show that Appellant was in possession of the claimed isolation regions.”).
Appellant also relies on the description of FIG. 6 in the ’054 Application:
[T]he shape or the surface area of the floating diffusion portion
in the OB pixel 38 is smaller than that of the floating diffusion
portion 44 in the aperture pixel 36 . . . .
Appeal Br. 5 (quoting Spec. ¶ 52). Appellant argues that FIG. 6 illustrates a
difference in size between floating diffusion portion (54) in the black
reference (OB) pixel and floating diffusion portion (44) in the effective
(aperture) pixel. Id. Therefore, according to Appellant, one of ordinary skill
in the art at the time of the invention considering FIG. 6 and its description
would have concluded as well that the first isolation region (isolation region
42 between FD 44 and PD 54) is smaller than the second isolation region
(isolation region 42 between FD 54 and another PD 53) because FIG. 6
shows this size difference. Id. at 5–6.
Appellant cites to MPEP 2163(I), as well as Lockwood v. American
Airlines, Inc., 107 F.3d 1565 (Fed. Cir. 1997), Vas-Cath Inc. v. Mahurkar,
935 F.2d 1555 (Fed. Cir. 1991), In re Wolfensperger, 302 F.2d 950 (CCPA
1962), and Autogiro Co. of Am. v. U.S., 384 F.2d 391 (Ct. Cl. 1967) as case
law that supports its position. We address the case law in our analysis.
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The Examiner responds, “patent drawings do not define the precise
portions of the elements and may not be relied on to show particular sizes if
the specification is completely silent on the issue.” Ans. 6–7 (citing
Hockerson-Halberstadt, Inc. v. Avia Group Int’l, 222 F.3d 951 (Fed. Cir.
2000)). The Examiner finds that the Specification fails to indicate that the
drawings are to scale, and that the Specification’s written description of
isolation regions is completely silent with respect to the size of the isolation
regions. Id. The Examiner agrees with Appellant that the Specification
discloses adjusting the size of the floating diffusion region of the OB pixel
relative to that of the aperture pixel—but finds that one of ordinary skill in
the art would not have understood this disclosure to suggest that one
isolation region is different in size to another. Id. at 8–9.
Appellant fails to show that the Examiner reversibly errs in the
rejection. We do not view the case law cited by Appellant as supporting that
Fig. 6 of the ’054 Application—with or without its description—is sufficient
to meet the written description requirement for “the first isolation region is
smaller than the second isolation region.”
Although the Lockwood court stated that one shows that one is in
possession of an invention “by such descriptive means as words, structures,
figures, diagrams, formulas, etc., that fully set forth claimed invention,” the
court also held: “[i]t is not sufficient for purposes of the written description
requirement of § 112 that the disclosure, when combined with the
knowledge in the art, would lead one to speculate as to modifications that
the inventor might have envisioned, but failed to disclose.” Lockwood, 107
F.3d at 1572.
In the instant case, Appellant argues that the disclosure that the
floating diffusion portion in the OB pixel is smaller than that of the floating
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diffusion portion in the aperture pixel would lead one of ordinary skill in the
art to “reasonably conclude that Fig. 6 discloses that ‘the first isolation
region is smaller than the second isolation region.’” Appeal Br. 5–6.
However, at best, the disclosure is insufficient written description of the
limitation at issue because it does no more than lead the skilled artisan “to
speculate as to modifications” that were not disclosed.
Vas-Cath concerns whether the drawing in an earlier-filed design
patent application provided written description adequate to support claims to
a double lumen catheter utility patent including the same drawings. Vas-
Cath, 935 F.2d at 1559–60. The court in Vas-Cath held that “under proper
circumstances, drawings alone may provide a ‘written description’ of an
invention as required be Sec. 112,” noting that drawings in a design
application are typically much more detailed than those in a utility
application. Id. at 1565 (emphasis added). The court quotes its predecessor
court, the Court of Customs and Patent Appeals, that: “it should be readily
apparent from recent decisions of this court involving the question of
compliance with the description requirement of § 112 that each case must be
decided on its own facts. Thus, the precedential value of cases in this area is
extremely limited.” Id. at 1562 (quoting In re Driscoll, 562 F.2d 1245, 1250
(CCPA 1977)). The court held that the district court committed legal error
in requiring that the patent drawings “describe what is novel or important.”
Id. (citing Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336,
345 (1961)). The court also held that the unrefuted declaration explaining in
detail what one of ordinary skill in the art would have understood from the
drawings in question gave rise to a genuine issue of material fact, precluding
grant of summary judgment. Id. at 1567.
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On the facts before us, we do not agree with Appellant that Fig. 6
alone provides written description of “the first isolation region is smaller
than the second isolation region.” Moreover, Appellant offers attorney
argument, but proffers no declaration or other evidence to support its
assertion of how one of ordinary skill in the art would interpret Fig. 6.
“Counsel’s argument cannot take the place of evidence lacking in the
record.” Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir.
1997).
The issue before the court in Wolfensperger was whether the
specification and drawings of the applicant’s patent application disclosing a
ball valve supported a claim limitation that “in untensioned condition” the
O-ring has “a radial width smaller than the radial width of said chamber,”
referring to the chamber in which it is positioned when in use.
Wolfensperger, 302 F.2d at 957. The court noted that the appellant did not
rely on the drawings alone, having “a clear, correlated pictorial and
descriptive dimensional disclosure.” Id. The court also found that the
drawings “are not in the least sketchy or diagrammatic in character,” and
provided “carefully drawn details wherein the relative width and depth of
groove 88 is clearly shown.” Id. at 957–58.
Thus, Wolfensperger does not support Appellant’s argument. Fig. 6 is
not “a clear . . . pictorial dimensional disclosure” that “the first isolation
region is smaller than the second isolation region,” and the ’054 Application
contains no “clear . . . descriptive dimensional disclosure” correlated to Fig.
6 with respect to the isolation regions. Rather, Fig. 6 recites no dimensions
and fails to identify any differences between the isolation regions of the
pixels. See Fig. 6. Contrary to Appellant’s argument that “Fig. 6 alone is
sufficiently detailed to show that Appellant was in possession of the claimed
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isolation regions” (Reply Br. 6), Fig. 6 comprises numerous “black boxes”
lacking any detail of the structure claimed.
Appellant quotes Autogiro: “In those instances where a visual
representation can flesh out words, drawings may be used in the same
manner and with the same limitations as the specification.” Appeal Br. 5
(quoting Autogiro, 384 F.2d at 398). However, in the case before us, Fig. 6
is not “fleshing out” words. Instead, Appellant seeks to substitute Fig. 6 for
all descriptive words in relation to the isolation regions. Autogiro does not
support Appellant’s position. Written description that the size of a floating
diffusion region may be different between the OB pixel and the aperture
pixel, and that the size of photodiodes in the OB pixel and the aperture pixel
are the same fails to inform one of ordinary skill in the art of any size
difference in the analogous isolation regions. See Appeal Br. 7; Reply Br. 5.
We find that the Examiner has the better argument: “Case law has also
established that patent drawings do not define the precise proportions of the
elements and may not be relied on to show particular sizes if the
specification is completely silent on the issue.” Ans. 6–7 (citing Hockerson-
Halberstadt, 222 F.3d at 956). Although the Hockerson case concerns
obviousness and the impact of drawings submitted during prosecution on the
scope of the claims, we are not persuaded that its holdings should be limited
in the manner urged by Appellant. The court held “a reasonable competitor,
being aware that figures in a patent are not drawn to scale unless otherwise
indicated, would understand the arguments in the prosecution history as
clearly disclaiming a groove having a width greater than the combined width
of the fins.” Hockerson, 222 F.2d at 956. Hockerson also references In re
Wright, 569 F.2d 1124, 1127 (CCPA 1977): “Absent any written description
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in the specification of quantitative values, arguments based on measurement
of a drawing are of little value.”
As in Hockerson, the Specification of the ’054 Application is
completely silent on the size, including relative size, of the isolation regions.
See generally Spec. A reasonable competitor, being aware that the ’054
Application contains no disclosure that figures are drawn to scale, would
understand that Fig. 6 cannot be relied on as showing any particular sizes of
the isolation regions, and would have no reason to compare the size of the
isolation of the OB pixel to the size of the isolation region of the aperture
pixel.4
Appellant contends that Hockerson is relevant only in the context of
whether a reference can be relied upon to teach specific dimensions, where
the reference does not disclose the drawings are to scale and is silent with
respect to the dimensions. Reply Br. 4. We do not agree. Appellant points
to nothing in Hockerson that suggests such a narrow reading. However, as
discussed further infra, we agree with Appellant that Hockerson contradicts
the Examiner’s position regarding the disclosure of JP ’816. See id.
Written description of “the shape or surface area of the floating
diffusion portion 54 in the OB pixel 38 is smaller than that of the floating
diffusion portion 44 in the aperture pixel 36” (Spec. ¶ 52) does not inform
one of ordinary skill in the art of any size difference in the analogous
isolation regions.
For the foregoing reasons, we affirm the Examiner’s rejection of
claims 7–12 for failing to comply with the written description requirement

4 We note also that Fig. 6 labels both isolation regions shown as “42,”
further suggesting to the ordinarily skilled artisan that they are not different.
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for the limitation “the first isolation is smaller than the second isolation
region.”
2. “a size of the photoelectric conversion portion in the
effective pixel is the same as a size of the photoelectric
conversion portion of the black reference pixel”
The Examiner rejects claim 10 for lack of written description of “a
size of the photoelectric conversion portion in the effective pixel is the same
as a size of the photoelectric conversion portion of the black reference
pixel.” Non-Final Act. 3.
Appellant argues that Fig. 6 and the Specification provide written
description support for the limitation. Appeal Br. 6–7. With regard to the
Specification, Appellant identifies paragraph 22, which discloses “if the size
of the floating diffusion portions and the size of the photodiodes are
respectively equal between the OB pixel and the aperture pixel, there may
still be a difference in the amount of dark current” between the pixels. Id.
Appellant also points to the disclosure that F1+P1=F2+P2, where F1 and P1
represent dark current components of an OB pixel and F2 and P2 represent
dark current components of the aperture pixel. Id. at 7.
According to the Specification, F1 (the portion of the dark current
generated by the floating diffusion portion of the OB pixel) alone is
adjusted. Spec. ¶ 49. This disclosure combined with paragraph 22 of the
Specification provides sufficient written description for the disputed
limitation.
We do not sustain the rejection of claim 10 for failing to comply with
the written description requirement for the limitation “a size of the
photoelectric conversion portion in the effective pixel is the same as a size of
the photoelectric conversion portion of the black reference pixel.”
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B. Rejection of claims 7–9, 11, and 12 as obvious over JP ’816
The Examiner finds JP ’816 discloses, inter alia, “[t]he floating
diffusion portions FD for the effective and black-reference OPB pixels are
different in sizes or shapes in accordance with an amount of dark current so
that the dark current associated with the black–reference and effective pixels
are substantially equivalent.” Non-Final Act. 5; Ans. 11–12. The Examiner
relies on Figs. 5A and 5B and paragraphs 114, 116, and 118 of JP ’816 for
teaching the limitation. Ans. 12–13.
Appellant argues that JP ’816 “is completely silent regarding the
relative sizes of the FD between the alleged effective pixel 10a and the
alleged black reference pixel 10b” and does not disclose that the drawing are
to scale. Appeal Br. 12 (citing Hockerson, 222 F.22d at 956).
We agree with Appellant. The paragraphs of JP ’816 cited by the
Examiner (114, 116, and 118) relate to elements other than the floating
diffusion regions. See JP ’816 ¶¶ 114, 116, 118. And Figs. 5A and 5B of JP
’816 contain no detail and are “sketchy or diagrammatic in character” (see
Wolfensperger, 302 F.2d at 957–58), and thus do not disclose the disputed
limitation.
We do not sustain the rejection of claims 7–9, 11, and 12 as obvious
over JP ’816.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
7–12 112 Written Description 7–12
10 112 Written Description 10
7–9, 11, 12 103 JP ’819 7–9, 11, 12
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Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
Overall
Outcome
7–12
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED