APPOTRONICS CHINA CORPORATION

Patent Trials and Appeals BoardDec 7, 2021

2021000094 (P.T.A.B. Dec. 7, 2021)

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. 15/313,497 11/22/2016 Qian LI 79592.0075 4501 53720 7590 12/07/2021 Chen Yoshimura LLP Attention Ying Chen PO Box 70127 Sunnyvale, CA 94087 EXAMINER HUANG, CHENG YUAN ART UNIT PAPER NUMBER 1787 NOTIFICATION DATE DELIVERY MODE 12/07/2021 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): miwa@cyiplaw.com ychen@cyiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte QIAN LI, YANZHENG XU, ZIFENG TIAN, and YUSAN CHEN Appeal 2021-000094 Application 15/313,497 Technology Center 1700 Before CATHERINE Q. TIMM, DONNA M. PRAISS, and DEBRA L. DENNETT, Administrative Patent Judges. TIMM, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 5–10, and 13–18. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Appotronics Corporation Limited. Appeal Br. 2. Appeal 2021-000094 Application 15/313,497 2 CLAIMED SUBJECT MATTER The claims are directed to a wavelength conversion device. The device includes a reflective layer that contains: (1) 0.5–30 mass% aluminum oxide reflective particles of 0.02–0.7 µm diameter; (2) 40–75 mass% titanium oxide auxiliary particles of 0.2–0.5 µm diameter; and (3) binder. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A wavelength conversion device, comprising a substrate, a reflective layer, and a light emitting layer stacked successively, wherein the reflective layer contains reflective particles, auxiliary particles, and a first binder, the reflective particles reflecting light, the auxiliary particles filling voids between the reflective particles, and the first binder binding the reflective particles and the auxiliary particles to form the layer, wherein the reflective particles are aluminum oxide particles and the auxiliary particles are titanium oxide particles, wherein a mass fraction of the titanium oxide particles in the reflective layer is 40–75% and a mass fraction of the aluminum oxide particles in the reflective layer is 0.5–30%, and wherein a particle diameter of the titanium oxide particles is 0.2–0.5 μm and a particle diameter of the aluminum oxide particles is 0.02– 0.7 μm, and wherein the light emitting layer contains a wavelength conversion material and a second binder. Appeal Br. 9 (Claims Appendix). Appeal 2021-000094 Application 15/313,497 3 REJECTIONS Claims 1, 5–8, 10, 13, and 15 are rejected under 35 U.S.C. § 103 as being unpatentable over Li (CN 203489180, issued March 19, 2014)2 in view of Washizu (WO 2014/017108 A1, published Jan. 30, 2014).3 Final Act. 3. Claim 9 is rejected under 35 U.S.C. § 103 as being unpatentable over Li in view of Washizu, and further in view of Hebrink (US 2013/186466 A1, published July 25, 2013). Final Act. 9. Claims 14 and 16–18 are rejected under 35 U.S.C. § 103 as being unpatentable over Li in view of Washizu, and further in view of Okaniwa (US 2013/0328149 A1, published Dec. 12, 2013). Final Act. 10. OPINION Appellant’s arguments focus on the Examiner’s rejection of claim 1. Appeal Br. 3–7. Thus, in deciding the issue on appeal we also focus on the rejection of claim 1. We fashion the issues as: (1) whether Appellant has identified a reversible error in the Examiner’s finding that Li and Washizu suggest selecting aluminum oxide and titanium oxide in amounts within claim 1’s mass fraction ranges for use as a mixture of scattering particles in a diffusion reflection layer; and, if so, (2) whether Appellant has identified a reversible error in the Examiner’s determination that Appellant’s evidence of criticality fails to meet the burden for showing unexpected results that 2 We rely on the figures of the Chinese document Appellant filed January 19, 2017, and the machine translation the Examiner entered October 11, 2018. 3 We rely on and cite to US 2015/0162511 A1, which the Examiner states, without objection by Appellant, is the English equivalent. Appeal 2021-000094 Application 15/313,497 4 support a conclusion of nonobviousness based on the totality of the evidence. Appellant has not identified such errors. There is no dispute that Li teaches a wavelength conversion device including a substrate on which is successively stacked a reflective layer and a light emitting layer. Compare Final Act. 3, with Appeal Br. 3–7. Li’s embodiment 3 uses a diffuse reflection layer including white scattering particles that function to scatter incident light. Li 12. Claim 1 requires a mixture of aluminum oxide and titanium oxide particles. There is no dispute that Li discloses both of these oxides as useful for the light scattering function. Li 12; Appeal Br. 4. Nor is there any dispute that Li teaches particle sizes of 50 nanometers to 5 micrometers (0.05–5 µm), a range that overlaps claim 1’s ranges. Compare Final Act. 3, with Appeal Br. 3–7. Appellant contends that the prior art combination does not teach the specific aluminum oxide and titanium oxide mixture in the mass fractions required by claim 1. Appeal Br. 4, 6–7. Further Appellant contends that this specific combination is critical. Appeal Br. 4–6. We do not find these contentions persuasive for the reasons provided by the Examiner in the Answer. We add the following primarily for emphasis. Although it is true that Li does not specifically suggest using aluminum oxide and titanium oxide together, Li’s list of scattering particles includes both and “[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition which is to be used for the very same purpose.” In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980). We, like the Examiner, disagree with Appellant’s contention (Appeal Br. 4) that Li’s list Appeal 2021-000094 Application 15/313,497 5 is so large that it fails to suggest the mixture of the two specifically listed oxides. Ans. 13. Once one of ordinary skill in the art selected the known scattering particles, aluminum oxide and titanium oxide, for use together, the ordinary artisan would have conducted routine experimentation to obtain the workable or optimal amounts for achieving the desired light scattering. Li discloses that particle size, the thickness of the layer, and the density amongst other things “can be obtained by a number of experiments by those skilled in the art according to the prior art.” Li 12–13. Li does not provide any specific guidance on what amounts would have been arrived at so the Examiner turns to Washizu. Washizu, like Li, teaches a reflection layer including light diffusion particles and binder. Washizu ¶¶ 57, 81. Like Li, Washizu is concerned with achieving high reflectivity. Li 12; Washizu ¶ 81. Further like Li, Washizu discloses that aluminum oxide and titanium oxide, amongst others, can serve as light diffusion particles along with mixtures of two or more types of light diffusion particles. Washizu ¶ 82. Washizu suggests using 60–95 mass% light diffusion particles to obtain sufficient reflectivity and binding strength. Washizu ¶ 84. This suggests that the ordinary artisan would have selected similar amounts for use in Li’s reflective layer to obtain workable or optimal reflectivity while also including enough binder to provide the necessary strength. Neither Li nor Washizu disclose concentration ranges for individual light scattering particles in mixture, but that does not foreclose a conclusion of obviousness. This is because the ordinary artisan would have found it obvious to use any workable or optimal combination of concentrations that Appeal 2021-000094 Application 15/313,497 6 would achieve the reflectivity, strength, density, and thickness properties disclosed as result effective by the references. Li 12–13; Washizu ¶ 84. See In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.”). It is by now well settled that where patentability is predicated upon a change in a condition of a prior art composition, such as a change in concentration or the like, the burden is on the applicant to establish with objective evidence that the change is critical, i.e., it leads to a new, unexpected result. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456 (CCPA 1955). This is usually done “‘by showing that the claimed range achieves unexpected results relative to the prior art range.’” In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) (quoting In re Geisler, 116 F.3d 1465, 1469–70 (Fed. Cir. 1997)) (alteration in original). Appellant relies on passages on pages 5 through 7 of the Specification to support a showing of unexpected results. Appeal Br. 4–6. But, as pointed out by the Examiner, those portions of the Specification do not include any experimental data. Ans. 16. These portions of the Specification merely make unsupported statements about the results without data. Unsupported statements in the specification, without more, cannot support a finding of unexpected results. Tyco Healthcare Group LP v. Mut. Pharm. Co., Inc., 642 F.3d 1370, 1377 (Fed. Cir. 2011). In fact, the Specification does not even state that the results were unexpected or surprising, it only states that the resulting reflectivity layer has various properties including “superior reflectivity and relatively thin Appeal 2021-000094 Application 15/313,497 7 thickness.” Spec. 7:1–2. “[A]ny superior property must be unexpected to be considered as evidence of non-obviousness.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007). Just because a property is “superior” does not necessarily mean it was unexpected. We agree with the Examiner that, based on the totality of the evidence, there is no showing of unexpected results that overcomes the prima face case of obvious. CONCLUSION The Examiner’s decision to reject claims 1, 5–10, and 13–18 is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5–8, 10, 13, 15 103 Li, Washizu 1, 5–8, 10, 13, 15 9 103 Li, Washizu, Hebrink 9 14, 16–18 103 Li, Washizu, Okaniwa 14, 16–18 Overall Outcome 1, 5–10, 13– 18 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED