Ex Parte Aitken et al

Patent Trial and Appeal BoardMar 27, 2017

11207691 (P.T.A.B. Mar. 27, 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. 11/207,691 08/18/2005 Bruce G. Aitken WJT003-0081 (SP05-088) 8214 22928 7590 03/29/2017 TORNTNO TNmRPORATFD EXAMINER SP-TI-3-1 CORNING, NY 14831 BREVAL, ELMITO ART UNIT PAPER NUMBER 2875 NOTIFICATION DATE DELIVERY MODE 03/29/2017 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): u sdocket @ corning .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRUCE G. AITKEN, MARK A. LEWIS, and MARK A. QUESADA Appeal 2014-0031681 Application 11/207,691 Technology Center 2800 Before MAHSHID D. SAADAT, DAVID M. KOHUT, and MONICA S. ULLAGADDI, Administrative Patent Judges. ULLAGADDI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from a final rejection of claims 13, 19, and 35—41.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE According to Appellants, the claims are directed to a device and method for inhibiting oxygen and moisture degradation of light emitting or 1 The real party in interest is Coming Incorporated. App. Br. 2. 2 Claims 1—12 are withdrawn. App. Br. 13—15 (Claims App’x). Claims 14— 18 and 20-34 are cancelled. Id. at 15—16. Appeal 2014-003168 Application 11/207,691 thin film devices. Abstract. Claim 13, reproduced below, is illustrative of the claimed subject matter: 13. An organic electronic device comprising: a substrate plate; an inner layer deposited on a surface of said substrate plate, the inner layer comprising an outer surface and at least one organic electronic or optoelectronic layer; a single thin-film layer hermetic seal formed by a tin fluorophosphate low liquidus temperature inorganic material deposited over the at least one organic electronic or optoelectronic layer; and wherein said tin fluorophosphate low liquidus temperature inorganic material is in contact with substantially the entire outer surface of said inner layer. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Cornelius et al. (“Cornelius”) US 5,089,446 Feb. 18, 1992 Takeuchi et al. (“Takeuchi”) US 2005/0218803 Al Oct. 6, 2005 REJECTION Claims 13, 19, and 35—41 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Takeuchi and Cornelius. Final Act. 2—7. ISSUES First Issue: Did the Examiner err in combining Takeuchi and Cornelius and concluding the combination renders obvious the subject 2 Appeal 2014-003168 Application 11/207,691 matter recited in independent claim 13, as well as the subject matter similarly recited in independent claims 40 and 41? Second Issue'. Did the Examiner err in finding the combination of Takeuchi and Cornelius teaches or suggests that “a thickness of said thin- film layer is about 2.5 microns,” as recited in dependent claim 39? ANALYSIS First Issue The Examiner finds Takeuchi teaches the claimed “substrate plate,” “inner layer,” “at least one organic layer electronic,” and “an inorganic sealing layer” and “hermetic seal deposited over the organic electronic,” but fails to teach the claimed “tin fluorophosphate low liquidus temperature inorganic material.” Final Act. 2. The Examiner finds Cornelius teaches the tin fluorophosphate material. Id. at 3. The Examiner concludes [I]t would have been obvious to one of ordinary skill in the art at the time the invention was made to use the sealing material composition of Cornelius in the device of Takeuchi for the purpose of having an improved sealing material capable of forming a fusion seal at a low sealing temperature (col. 2, lines 34-36) and a sealing layer with high resistance against moisture. Furthermore, it has been held that simple substitution of one known element for another to obtain predictable results is obvious. Id. First, Appellants argue Takeuchi teaches away from Cornelius because, for example, “Takeuchi provides no teaching or suggestion whatsoever that the sealing films disclosed therein can be anything other than SiNx films of the very specific ratio” disclosed in Takeuchi. App. Br. 5—7. Initially, we note that the Supreme Court rejected the rigid requirement 3 Appeal 2014-003168 Application 11/207,691 of a teaching or suggestion or motivation to combine known elements in order to show obviousness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007). The Court held that an obviousness analysis “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418. Appellants’ first argument is unpersuasive, in part, because there exists no requirement that the rationale for combining references be expressly set forth in the references themselves. Furthermore, our reviewing court has held “[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, we agree with the Examiner’s finding that “Takeuchi does not disclose if replacing the sealing layer with another sealing layer other than silicon nitride that the device would not function or work properly,” but rather provides a comparison of silicon nitride film sealing layer types. Ans. 3. Accordingly, we are further unpersuaded by Appellants’ first argument because Appellants do not cite sufficient evidence supporting Appellants’ argument that Takeuchi “criticize, discredit, or otherwise discourage[s]” the usage of tin fluorophosphate, as recited in claims 13, 40, and 41. Second, Appellants specifically assert that “Takeuchi’s thin-film seals cannot be made using the Cornelius composition” because Takeuchi describes creating its seals using chemical vapor deposition (CVD) and Cornelius describes using a “heat fusion method.” App. Br. 7—8. Appellants 4 Appeal 2014-003168 Application 11/207,691 support their arguments with the Declaration of Dr. Bruce Aitken (“Aitken Deck”). Dr. Aitken’s Declaration relates to an earlier rejection of the claims over Aota and Cornelius, which was withdrawn in an Office Action prior to the Action from which this appeal was taken. See Aitken Deck 1116—20. To the extent that Dr. Aitken’s opinion is relevant to the rejection on appeal, we address it herein. Dr. Aitken opines that “[tjhere is no reason a glass scientist would select a bulk glass as a suitable precursor material for a vapor deposition process.” Id. 118. Dr. Aitken further opines that [I]f a process suitable for the formation of a thin film is used, where the material is never in a liquid or fluid state after the deposition, e.g., sputtering, evaporation, laser ablation, chemical vapor deposition, etc., then it certainly isn’t obvious that any glass would work.... Our colleagues long believed that hermetic encapsulation via thin film deposition (e.g. sputtering) of tin fluorophosphates would never work. Id. 120. Initially, we note that claim 13 does not require the “tin fluorophosphate” to be formed by a particular process. See Ans. 6 (“[T]he method of making the product is not recited anywhere in any of the claims.”). Appellants’ Specification3 discloses that the low liquidus temperature (LLT) material 202 “can be deposited using anyone [sic] of [a] variety of processes including, for example, sputtering, flash evaporation, spraying, pouring, frit-deposition, vapor-deposition, dip-coating, painting, rolling[,] . . . spin-coating, a co-evaporation, a laser ablation process, or any combination thereof.” Spec. 5,11. 13—19. Furthermore, we note that Appellants’ arguments and Dr. Aitken’s testimony are not responsive to the Examiner’s rejection. The Examiner’s 3 Referencing the Specification filed August 18, 2005. 5 Appeal 2014-003168 Application 11/207,691 proffered combination modifies Takeuchi’s invention to “replace the sealing layer of Takeuchi which is formed by chemical vapor deposition with the sealing layer of Cornelius which is formed by fusion process.” Ans. 3 (emphasis added); see id. at 6 (“[Djuring the fabrication process, the CVD will not even be used because the cheaper and simpler fusion process of Cornelius will replace the CVD process of Takeuchi.”) The Examiner notes that “the underlying process (e.g., sputtering)” discussed in Dr. Aitken’s Declaration “is not the same process as fusion.” Id. at 5. For this same reason, we are unpersuaded by Appellants’ argument that, absent Si-N bonds of the specific ratio, Takeuchi will not “provide proper water permeability . . . thus rendering Takeuchi[’s] seal unsatisfactory for its intended purpose” and that “a skilled artisan would not have had a reasonable expectation of success in making a thin-film hermetic seal of the composition as claimed.” App. Br. 7; see id. at 8 (arguing that the Examiner’s proffered combination of Takeuchi and Cornelius would require “a modification, i.e., removing the Si-Si bonding chains, fwhich] would destroy the functionality of Takeuchi’s hermetic seals”); see also Aitken Deck H 19 (“Cornelius provides no comparative examples of the aqueous durability of a tin fluorophosphate glass against other materials, including silicon nitride.”). We are also unpersuaded by Appellants’ argument regarding Si bonding and the argument regarding a lack of comparative examples because the test for obviousness is not whether the features of one reference may be bodily incorporated into another reference. In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969); In reMapelsden, 329 F.2d 321, 322 (CCPA 1964). Rather, the relevant inquiry is whether the claimed subject matter 6 Appeal 2014-003168 Application 11/207,691 would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellants do not persuasively address the Examiner’s proffered combination of Takeuchi and Cornelius, nor what the combined teachings would have suggested to one of ordinary skill in the art. For the foregoing reasons, we are not persuaded by Appellants’ second argument. Third, Appellants argue “Takeuchi teaches that, to make the seals taught therein truly hermetic, a second sealing layer is required ... in sharp contrast to the single layer hermetic seal claimed.” App. Br. 9. In the Answer, the Examiner indicates that “[t]his argument is moot because it is referring to the second embodiment of the invention of Takeuchi which was not cited in the Office Action,” and instead “the first embodiment of the invention which is cited in the Office Action does not require a second sealing layer.” Ans. 4. For this reason, Appellants’ third argument is unpersuasive of Examiner error. In view of the above, we are not persuaded the Examiner erred in concluding the combination of Takeuchi and Cornelius renders obvious the subject matter recited in independent claims 13, 40, and 41 and dependent claims 19 and 35—38, not separately argued. Therefore, we sustain the 35 U.S.C. § 103(a) rejection of claims 13, 19, 35—38, 40, and 41 over Takeuchi and Cornelius. Second Issue Claim 39 recites, inter alia, “a thickness of said thin-film layer is about 2.5 microns.” Appellants argue that the range encompassed by Takeuchi’s teaching of a 0.5 pm thickness and Cornelius’ teaching of a 7 Appeal 2014-003168 Application 11/207,691 0.003” thickness cannot be optimized based on skill in the art because the teachings do not generally disclose the claimed range recited in claim 39. App. Br. 10. Initially, we note that claim 39 only recites a single thickness value, 2.5 microns, and not a range. The Examiner finds that Appellants have “not disclosed any criticality to the claimed thin-film layer thickness” and cites Appellants’ Specification, which discloses that ‘“the thin-layer thickness can be made as thick as one needs depending on one’s chosen deposition duration.’” Ans. 7 (emphasis omitted); see Spec. 12,11. 12—14. We agree with the Examiner that the combined teachings of Takeuchi and Cornelius would suggest a choice most apt for the application at issue that, in particular, exhibits the desired properties. Appellants do not persuasively rebut the Examiner’s findings. See generally Reply Br. For the foregoing reason, we are not persuaded the Examiner erred in finding the combination of Takeuchi and Cornelius teaches the limitation recited in claim 39. Therefore, we sustain the 35 U.S.C. § 103(a) rejection of claim 39 over Takeuchi and Cornelius. DECISION The Examiner’s rejection of claims 13, 19, and 35—41 is affirmed. No time period for taking any subsequent action in connection with this appeal maybe extended. See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8