Ex Parte Graham et al

Patent Trial and Appeal Board

May 18, 2018

14067595 (P.T.A.B. May. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/067,595 10/30/2013
10800 7590 05/18/2018
Maginot, Moore & Beck LLP
One Indiana Square, Suite 2200
Indianapolis, IN 46204
FIRST NAMED INVENTOR
Andrew Graham
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.
1576-1011 8658
EXAMINER
ASHBAHIAN, ERIC K
ART UNIT PAPER NUMBER
2891
MAILDATE DELIVERY MODE
05/18/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW GRAHAM, ANDO FEYH,
and GARY O'BRIEN
Appeal2017-007098
Application 14/067 ,595
Technology Center 2800
Before KAREN M. HASTINGS, WESLEY B. DERRICK, and
DEBRA L. DENNETT, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 requests our review under 35 U.S.C. § 134(a) from the
Examiner's decision rejecting claims 1-3, 5, 6, 11-13, 15, and 16 under
35 U.S.C. § 103(a) as unpatentable over at least the basic combination of
Seeger et al. (US 2013/0001550 Al, published Jan. 3, 2013) ("Seeger"),
Zorich et al. (US 2006/0214202 Al, published Sept. 28, 2006) ("Zorich"),
and Lee et al. (US 2011/0156106 Al, published June 30, 2011) ("Lee"). 2
1 Appellant is the Applicant, Robert Bosch GmbH, which is also stated to be
the real party in interest (Appeal Br. 3).
2 While the Examiner applies additional prior art to claims 11-13, 15, and
16, Appellant does not present any additional arguments against these
rejections (Appeal Br. 11, 12).
Appeal2017-007098
Application 14/067 ,595
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Independent claim 1 is illustrative of the subject matter on appeal:
1. A microelectromechanical systems (MEMS) pressure
sensor compnsmg:
a substrate;
a lower electrode deposited onto the substrate;
a cap layer having an upper electrode suspended over the lower
electrode and forming a flexible membrane over a cavity, the
flexible membrane including the upper electrode, the cavity
being defined by the upper electrode and the lower electrode;
a dielectric layer deposited directly onto at least a portion of the
cap layer that is over the cavity; and
a surface charge mitigation layer formed of a conductive
material deposited directly onto a portion of the dielectric layer
that is deposited over the cavity, the surface charge mitigation
layer being electrically coupled to ground potential, the surface
charge mitigation layer being patterned to form a grid, the grid
being configured to alter an optical property of the surface
charge mitigation layer.
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellant's contentions, we find that the preponderance of evidence
supports the Examiner's conclusion that the subject matter of Appellants'
claim 1 is unpatentable over the applied prior art. We sustain the
Examiner's 35 U.S.C. § 103 rejections essentially for the reasons set out by
the Examiner in the Answer.
2
Appeal2017-007098
Application 14/067 ,595
We add the following primarily for emphasis.
Appellant's principal arguments in the Briefs are that 1) the protection
layer 212 or grid structure 23 2 of Lee is not deposited directly onto a portion
of the dielectric layer as required by claim 1 (Appeal Br. 10; Reply Br. 3, 4)
and 2) Zorich's cut-out region is not a cavity as required by claim 1 because
Zorich's cavity is not bounded by a lower electrode and, thus, Zorich does
not show an insulative shield layer deposited directly on a cap layer that is
over the cavity or a conductive shield layer deposited directly on a dielectric
layer that is deposited over the cavity as recited in claim 1 (Appeal Br. 11;
Reply Br. 5).
Appellant's arguments mainly address the references separately and
do not fully address the rejection and the inferences of these references that
are presented on this record for our review.
It has been established that "the [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." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007). Likewise, it is also well settled that a
reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed.
Cir. 1992).
As pointed out by the Examiner, the pressure sensor of claim 1
encompasses the pressure sensor of Seeger (including a cavity bounded by
an upper and lower electrode) except that Seeger fails to specify that there is
the required dielectric layer and surface charge mitigation protection layer
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Appeal2017-007098
Application 14/067 ,595
(Final Action 2, 3). The Examiner relies upon Zorich to exemplify the
predictable use of such layers on a pressure sensor wherein the dielectric
layer is over a cavity, and Lee to exemplify that a protection layer of a
MEMS device may be patterned to form a grid (id. at 3, 4). While Lee states
that the protection layer is located within the dielectric layer, the claim
language does not distinguish thereover (Ans. 4). Appellants have not
directed our attention to any persuasive reasoning or credible evidence to
establish that the Examiner's interpretation that the claims encompass the
applied prior art combination is unreasonable. In re ICON Health & Fitness,
Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (it is well established that "the
PTO must give claims their broadest reasonable construction consistent with
the specification" and if the Specification does not provide a definition for
claim terms, the PTO applies a broad interpretation). Furthermore, as
pointed out by the Examiner, even assuming arguendo that the broadest
reasonable interpretation of the claim language requires that the charge
mitigation layer must be on top of the dielectric layer rather than embedded
therein, the applied prior art combination still suggests and renders obvious
such a configuration (Ans. 4 (wherein the Examiner explains that one would
have found it obvious to render the protection layer of Zorich, which is on
top of the dielectric layer, a grid as exemplified in Lee)). Notably, Appellant
has not responded to the Examiner's alternative reasoning in this regard.
Thus, Appellant has not shown reversible error in the Examiner's
determination that a person of ordinary skill in the art would have, using no
more than ordinary creativity, used such a configuration of layers in the
MEMS pressure sensor of Seeger (see, e.g., Ans. 3---6).
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Appeal2017-007098
Application 14/067 ,595
It is well established that the obviousness inquiry does not ask
"whether the references could be physically combined but whether the
claimed inventions are rendered obvious by the teachings of the prior art as a
whole." In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en bane); see also
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (stating "[t]he test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference"); In re
Nievelt, 482 F.2d 965, 968 (CCPA 1973) ("Combining the teachings of
references does not involve an ability to combine their specific structures.").
Furthermore, we "take account of the inferences and creative steps
that a person of ordinary skill in the art would employ," and find a person of
ordinary skill in the art would have overcome any difficulties in combining
the stated features of these references within their level of skill. KSR, 550
U.S. at 418; see also id. at 421 ("A person of ordinary skill is also a person
of ordinary creativity, not an automaton."); Ball Aerosol & Specialty
Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009)
(under the flexible inquiry set forth by the Supreme Court, the PTO must
take account of the "inferences and creative steps," as well as routine steps,
that an ordinary artisan would employ (emphasis omitted)).
Appellant does not present additional arguments regarding the
rejections of claims 11-13, 15, and 16 (Appeal Br. 11, 12). Thus, they have
not shown reversible error in these rejections.
Accordingly, we affirm the Examiner's prior art rejections of the
claims under 35 U.S.C. § 103(a) for the reasons given above and presented
by the Examiner.
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Appeal2017-007098
Application 14/067 ,595
DECISION
We affirm the Examiner's rejection of claims 1-3, 5, 6, 11-13, 15,
and 16.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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