Ex Parte Freund

Patent Trial and Appeal Board

Aug 4, 2016

13617169 (P.T.A.B. Aug. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/617, 169 09/14/2012
57299 7590 08/08/2016
Kathy Manke
A vago Technologies Limited
4380 Ziegler Road
Fort Collins, CO 80525
FIRST NAMED INVENTOR
Joseph M. Freund
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Ll2-0978US1 2362
EXAMINER
WARD, ERICA
ART UNIT PAPER NUMBER
2891
NOTIFICATION DATE DELIVERY MODE
08/08/2016 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):
kathy.manke@broadcom.com
patent.info@broadcom.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH M. FREUND 1
Appeal2015-002303
Application 13/617, 169
Technology Center 2800
Before ADRIENE LEPIANE HANLON, CHRISTOPHER C. KENNEDY,
and JEFFREY R. SNAY, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1, 2, 4, 5, 9-14, 17, and 20-22. We have
jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to an apparatus that provides
enhanced light extraction efficiency in an LED structure. E.g., Spec. i-f 1;
1 According to the Appellant, the Real Party in Interest is A vago
Technologies Limited, which acquired the assignee of record LSI
Corporation effective May 6, 2014. Br. 1.
Appeal2015-002303
Application 13/617,169
Claim 1. Claim 1 is reproduced below from page 14 (Claims Appendix) of
the Appeal Brief:
1. An apparatus, comprising:
a substrate;
a first buried layer formed over the substrate, the first buried
layer comprising one or more raised mesa structures;
a second buried layer formed over the first buried layer, the
second buried layer at least partially filling one or more mesa
hollows of the one or more raised mesa structures of the first
buried layer;
an active layer formed over the second buried layer; and
a capping layer formed over the active layer;
wherein the first buried layer and the second buried layer
comprise respective distributed Bragg reflectors (DB Rs).
REJECTIONS ON APPEAL
1. Claims 1, 2, and 12 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Tsang (US 2012/0235114 Al, published Sept. 20, 2012).
2. Claims 1, 2, 4, 9, 10, 12-14, and 22 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kang et al. (US 2011/0186882 Al, published
Aug. 4, 2011) in view of Lu et al. (US 2010/0171094 Al, published July 8,
2010).
3. Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Kang in view of Lu, further in view of Chiang et al. (US 2013/0140269
Al, claiming priority to a foreign application dated Dec. 5, 2011).
4. Claims 17, 20, and 21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kang in view of Lu, further in view of Jeong et al. (US
2012/0187365 Al, claiming priority to a foreign application dated Jan. 26,
2011).
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Appeal2015-002303
Application 13/617,169
5. Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Kang in view of Lu, further in view of Tsuda et al. (US 6,984,841 B2,
issued Jan. 10, 2006).
ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner's rejections.
We affirm the rejections for reasons set forth below, in the Final Action, and
in the Examiner's Answer. See generally Final Act. 2-11; Ans. 2-7.
Rejection 1
The Appellant presents arguments concerning only claim 1. Claims 2
and 12 will stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Relying largely on Figure 1 of Tsang, the Examiner finds that Tsang
anticipates claim 1. Figure 1 of Tsang is reproduced below:
141 13
15 ----,_____ ____________ ___,
Figure 1 represents a light emitting chip having, inter alia, substrate 10, first
reflective layer 14, second reflective layer 141, active layer 182, and
semiconductor layer 180. Tsang Fig. 1 & ,-r,-r 10-12. The Examiner finds,
inter alia, that Tsang's first reflective layer 14 is equivalent to the "first
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Appeal2015-002303
Application 13/617,169
buried layer comprising one or more raised mesa structures" of claim 1, and
that Tsang's second reflective layer 141 is equivalent to the "second buried
layer" of claim 1. Final Act. 2-3.
The Appellant first argues that "Tsang does not comprise one or more
raised mesa structures." Br. 6.
In the Answer, the Examiner elaborates on the rejection set forth in
the Final Action, construing "mesa" to mean "a structure having a flat top
and steep sidewalls." Ans. 3. The Examiner provides the following
annotation of Tsang Fig. 1:
t41 13
' ~ .
: ~ ~···/ .....
=._ 1ec ...... t·--... -~----
;: =~~t ........................................................................................................
Ans. 2.
The Appellant does not provide a proposed construction of the term
"mesa" or "raised mesa structures" in the Appeal Brie±: and the Appellant's
argument consists of a brief description of Tsang followed by an assertion
that Tsang fails to disclose raised mesa structures. See Br. 6. The
Appellant, however, provides no explanation or argument as to why Figure 1
of Tsang does not disclosed "raised mesa structures." Nor does the
Appellant file a Reply Brief to challenge the Examiner's interpretation of
"mesa."
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Appeal2015-002303
Application 13/617,169
The Examiner's interpretation of "mesa" appears to be consistent with
the plain meaning of the word. See http://www.merriam-
webster.com/dictionary/mesa (referring to "a flat top and steep sides .... "),
last accessed August 2, 2016. The Appellant has not identified anything in
the Specification defining "mesa" in a way that would exclude the portions
of Tsang identified by the Examiner. Accordingly, the Appellant has not
shown reversible error in the Examiner's finding that Tsang teaches "raised
mesa structures," as recited by claim 1. 2 See In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) ("a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art" is
unpersuasive); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("it has
long been the Board's practice to require an applicant to identify the alleged
error in the examiner's rejections").
The Appellant also argues that "the second reflective layer 141 of
Tsang is not formed over the first reflective layer 14." Br. 6. However, the
Appellant provides no support or explanation for that argument, and merely
explains that "[t]he second reflective layer 14 in Tsang is ... made of an
electrically insulating material to isolate the connection section 122 from
active layer 182." Id. That description of Tsang's second reflective layer
2 We note that, following the Final Action, the Appellant sought to amend
claim 1 to recite a "first buried layer having a continuous first surface facing
the substrate and a second surface opposite the first surface defined by one
or more raised mesa structures and one or more mesa hollows." See Claim
Amendments dated July 1, 2014. The Examiner noted that "[t]he proposed
limitation appears to likely overcome the rejection," but declined to enter the
amendment for other reasons. See Advisory Act. dated July 9, 2014.
Accordingly, the version of claim 1 set forth in the July 1, 2014 amendment
is not before us.
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Appeal2015-002303
Application 13/617,169
141 fails to explain why a person of ordinary skill in the art would not
consider that layer to be positioned "over" the first buried layer.
In the Answer, the Examiner explains that "the term 'over' does not
require 'directly over' and may reasonably be interpreted as 'above' (e.g. the
moon is over the horizon)." The Appellant does not propose a different
construction of "over" or file a Reply Brief to contest the Examiner's
construction. In view of the argument presented by the Appellant, we are
not persuaded that Tsang's second layer 141 is not "over" Tsang's first
layer, under the broadest reasonable interpretation of the term "over"
consistent with the Specification. See Lovin, 652 F.3d at 1357; Jung, 637
F.3d at 1365.
On this record, we affirm the Examiner's rejection of claim 1.
Rejection 2
The Appellant presents arguments concerning only claims 1 and 22.
\Ve limit our discussion to those claims, and claims 2, 4, 9, 10, and 12-14
will stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 1. Relying on the same interpretation of "raised mesa
structures" discussed above, the Examiner finds that Kang teaches each
element of claim 1 except a second layer formed "over" a first layer. Final
Act. 4. In particular, the Examiner relies on Kang Figure 1 as showing a
first buried layer 31 and 32, and second buried layer 33 and 32, formed
beside the first layer rather than "over" the first layer. Id. Figure 1 of Kang
is reproduced below:
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Appeal2015-002303
Application 13/617,169
...- 60 ~~n
<10~,~~ I
}. ...................................................................................................................................... ~
i I
-r----?O
,____~~~~~~~~----;
, ______________________________________________________________________________ -i-----10
Figure 1 represents an embodiment of a light emitting device including, inter
alia, substrate 10 and semiconductor layers 31, 32, and 33. Kang ,-r,-r 28--40.
Relying on Figure 2 of Lu, the Examiner finds that Lu teaches a
second buried layer formed "indirectly on and over a first buried layer."
Final Act. 4. Figure 2 of Lu is reproduced below:
Figure 2 represents a light-emitting semiconductor apparatus, Lu ,-r 34, and
the Examiner finds that patterned reflective layer 224 constitutes a second
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Appeal2015-002303
Application 13/617,169
buried layer, that patterned reflective layer 228 constitutes a first buried
layer, and that layer 224 is "over" layer 228. Final Act. 4. The Examiner
concludes:
It would have been obvious at the time of the invention to one
having ordinary skill in the art to have formed the device of Kang
with the second buried layer over the first buried layer as taught
by Lu in order to provide a distributed Bragg reflector (DBR)
which effectively reflects the internal light leading to greater
light extraction efficiency (i-f [0040]) or to allow the user to form
a specific geometrical pattern among the first and second buried
layers in order to meet the requirements of the users (Figs. 3 ,4
and i1 [0041 ], [0048]).
Final Act. 4--5.
Similar to previous arguments, the Appellant briefly describes Kang
and asserts, with no persuasive discussion, that "Kang does not describe
first, second, and third GaN-based semiconductor layers 31, 32 and 33 as
having raised mesa structures or as filling in mesa hollows of one or more
raised mesa structures." Rr. 8.
In the Answer, however, the Examiner explains that Kang forms
raised mesa structures of layers 31 and 32, and the Examiner provides the
following annotated version of Kang's Figure 6, which represents a "view[]
for explaining a process of manufacturing a light emitting device," Kang
i-f 16:
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Appeal2015-002303
Application 13/617,169
- ..;
t~t~ :~~::.:~tl nJe~ ... a
Ans. 4. The Examiner further explains that "Kang then teaches forming a
second buried layer (33 and an additional 32) filling the hollows of the first
buried layer," and provides the following annotated version of Kang's
Figure 7:
.~:f~:)~:~~·r·
-:-. _,.
1.f >f1Y\~J}£. I,
s~~t:.011~J."l:rt1~it~d ~--~~jt';~'=""'~~'*""~~,,.,"'."":~~~-~-'~' =:!!*:=~
hrver 31""Â¥.10
11 I l~1~ r:...:.cr .. {:, ..... "'- .:...-.. ;.: ~c.- l ..... ~
· 1· -:-: ... '. ~-:..
.ilO H O\\'S 0 f
~·
-r--~e
,....~~~~~~~~~~~~~~~~~~~-. J .. , ___ :··:(~
~:
9
Appeal2015-002303
Application 13/617,169
Ans. 5. The Examiner's interpretation of Kang as having mesa structure
layers that have hollow regions filled with other layers appears to be
consistent with Kang's disclosure of layers that serve as "distributed bragg
reflector[s] (DBR) in the vertical and horizontal directions." See Kang i-fi-1
31, 32, 34--37.
The Appellant does not file a Reply Brief to challenge the Examiner's
interpretation of Kang. And, as noted above, the Appellant's argument
simply asserts that Kang does not teach raised mesa structures while
providing little explanation. See Br. 8. The Appellant has not persuaded us
of reversible error in the Examiner's findings and conclusions concerning
Kang.
The Appellant also argues that Lu "fails to disclose the first and
second buried layers," that "Lu fails to disclose a first buried layer having
one or more raised mesa structures," and that "Lu cannot be said to disclose
a second buried layer which at least partially fills one or more mesa hollows
of one or more raised mesa structures of a first buried layer." Id. at 9.
Again, however, the Appellant fails to address the Examiner's findings in a
meaningful way. See id. Moreover, in the Final Action, the Examiner does
not rely on Lu for the teaching of a mesa structure or a second layer which at
least partially fills a mesa hollow; the Examiner relies on Kang for those
elements. Final Act. 4. As the Examiner explains in the Answer, it appears
that Lu also teaches or renders obvious those elements, see Ans. 6, and the
Appellant's arguments concerning Lu provide no basis to reject the
Examiner's finding that a person of ordinary skill in the art would have been
motivated to arrange the second layer "over" the first layer in view of the
combined teachings of Kang and Lu. See Ans. 4--6; see also Kang i1 40
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Appeal2015-002303
Application 13/617,169
(noting that the forms of the semiconductor layers illustrated in the figures
are 'just examples" and that the layers "may be disposed in various
shapes .... ").
On this record, we are not persuaded of reversible error in the
Examiner's findings and conclusions concerning Kang and Lu. See Lovin,
652 F.3d at 1357; Jung, 637 F.3d at 1365.
Claim 22. Claim 22 depends from claim 1 and recites: "The
apparatus of claim 1, further comprising a discontinuity formed between the
first buried layer and the second buried layer."
The Examiner finds that Kang as modified by Lu teaches a
discontinuity formed between the two layers. Final Act. 7. In particular, the
Examiner finds that the layer between Lu's first and second buried layers
224 and 228, which is labeled as item 226 in Figure 4 of Lu, constitutes a
discontinuity. Ans. 6.
In the Appeal Brief, the Appellant includes a large block quote from
Lu describing layers 224 and 228, and simply asserts that "Lu appears
devoid of any reference to a discontinuity formed between a first buried
layer and a second buried layer." Br. 10-11.
That argument is not persuasive. See Lovin, 652 F.3d at 1357; Jung,
637 F.3d at 1365. The Appellant does not attempt to define "discontinuity,"
and, as the Examiner explains in the Answer, it appears that "[ t ]he boundary
between any two distinct layers inherently forms a discontinuity." Ans. 6.
Thus, the Examiner explains that the boundary between Kang's distinct
layers constitutes a discontinuity, as does the boundary layer 226 between
Lu's layers 224 and 228. Id. The Appellant provides no basis to reject the
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Appeal2015-002303
Application 13/617,169
Examiner's findings and conclusions concerning whether the references
teach or otherwise render obvious a "discontinuity" between the layers.
We affirm the Examiner's rejection of claim 22.
Rejections 3-5
The Appellant presents no separate arguments for the patentability of
claims subject to Rejections 3-5. Accordingly, we affirm the Examiner's
rejection of those claims.
CONCLUSION
We AFFIRM the Examiner's rejections of claims 1, 2, 4, 5, 9-14, 17,
and 20-22.
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
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