Ex Parte Heibel et al

Patent Trial and Appeal Board

Jun 27, 2017

13769401 (P.T.A.B. Jun. 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.
13/769,401 02/18/2013 Michael D. Heibel RTU 2012-001 TRADL 1088
26353 7590 06/29/2017
WF S TTN (TH OT TSF. FT FFTRIF POMP ANY T T C EXAMINER
1000 Westinghouse Drive
Suite 141
MEHTA, RATISHA
Cranberry Township, PA 16066 ART UNIT PAPER NUMBER
2895
NOTIFICATION DATE DELIVERY MODE
06/29/2017 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):
guerral @ wes tinghou se. com
spadacjc @ westinghouse.com
coldrerj @ westinghouse.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL D. HEIBEL, MELISSA M. WALTER, and
ROBERT W. FLAMMANG
(Applicant: WESTINGHOUSE ELECTRIC COMPANY LLC)1
Appeal 2016-003993
Application 13/769,401
Technology Center 2800
Before ROMULO H. DELMENDO, MONTE T. SQUIRE, and
LILAN REN, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal the Examiner’s decision to finally reject claims 1—
10, which constitute all the claims pending in this application. 35 U.S.C.
§ 134(a). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
1 Appellants identify “Westinghouse Electric Company LLC” as the real
party in interest. App. Br. 2.
2 In this decision, we refer to the Specification filed February 18, 2013
(“Spec.”); the Final Office Action appealed from, dated May 21, 2015
(“Final Act.”); the Advisory Action dated August 10, 2015 (“Adv. Act.); the
Appeal 2016-003993
Application 13/769,401
The Claimed Invention
Appellants’ disclosure relates to “[a] silicon carbide Schottky diode
solid state radiation detector that has an electron donor layer such as
platinum placed over and spaced above the Schottky contact to contribute
high energy Compton and photoelectrical electrons from the platinum layer
to the active region of the detector to enhance charged particle collection
from incident gamma radiation.” Abstract; Spec. 12. According to
Appellants, the claimed solid state radiation detector has “improved gamma
radiation sensitivity.” Spec. 12.
Claim 1 is illustrative of the claimed subject matter on appeal and is
reproduced below from the Claims Appendix to the Appeal Brief (App. Br.
7) (key disputed claim language italicized and bolded):
1. A solid state radiation detector comprising:
a Schottky diode having an active semiconductor region and
a Schottky contact over at least a portion of the active
semiconductor region;
a layer of a Compton and photoelectron source material
that reacts with incident gamma radiation to interact with
electrons surrounding source atoms of the source material to
produce high energy Compton and photoelectric electrons to
penetrate into the active region of the Schottky diode through
the Schottky contact, the layer of the Compton and
photoelectron source material being supported above the
Schottky contact, and
a layer of fluid interposed between the Schottky contact and
the layer of the Compton and photoelectron source material.
Appeal Brief dated September 22, 2015 (“App. Br.”); the Examiner’s
Answer to the Appeal Brief dated February 25, 2016 (“Ans.”); and the Reply
Brief dated March 9, 2016 (“Reply Br.”).
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Application 13/769,401
The References
The Examiner relies on the following references as evidence in
rejecting the claims on appeal:
Ruddy et ah, US 5,969,359 Oct. 19, 1999
(hereinafter “Ruddy”)
Miller US 2010/0219385 A1 Sep. 2, 2010
The Rejection
On appeal, the Examiner maintains the following rejection: Claims 1—
10 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over
Ruddy further in view of Miller. Ans. 3; Final Act. 2.
OPINION
The Examiner determines that the combination of Ruddy and Miller
suggests a solid state radiation detector satisfying all of the limitations of
claim 1 and that the combination would have rendered claim 1 obvious.
Ans. 3—5.
In particular, the Examiner finds that Ruddy discloses a solid state
radiation detector comprising a Schottky diode and a neutron converter layer
22. Ans. 3 (citing Ruddy, Figs. 3, 4, col. 7,1. 61). The Examiner finds
further that Ruddy’s neutron converter layer 22 corresponds to the claimed
layer of “Compton and photoelectron source material” because neutron
converter layer 22 is formed of materials with atomic numbers substantially
greater than platinum, such as plutonium and uranium. Ans. 3, 4 (citing
Ruddy, Figs. 3, 4, col. 8,1. 55, col. 9,11. 23—35). The Examiner also finds
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Application 13/769,401
that Miller discloses that platinum, plutonium, and uranium are materials
effective at reflecting neutrons. Id. at 4 (citing Miller 131).
Based on the above findings, the Examiner concludes that
it would have been obvious to the person in the ordinary skill in
the art at the time invention was made to use platinum as
photoelectron donor material for the purpose of substituting art
recognized equivalents known to be used for the same purpose.
Ans. 4 (citing MPEP 2144.06).
Appellants argue that the Examiner’s rejection of claim 1 should be
reversed because the cited art does not teach or suggest “a layer of Compton
and photoelectron source material that reacts with incident gamma radiation
to interact with electrons ... to penetrate into the active region of the
Schottky diode,” as required by the claim. App. Br. 4. In particular,
Appellants contend that, in contrast to the claimed invention, Ruddy teaches
a neutron converter layer that in response to neutrons generates free ions that
enter into the active region and Miller teaches a container device that
facilitates the transfer of a high temperature and compression to a light
nuclei for a sufficient time to combine the nuclei with a heavier nuclei by
fusion. Id. at 4.
Appellants’ argument is persuasive because the Examiner has not
established by a preponderance of the evidence that the cited art teaches or
suggests a “layer of Compton and photoelectron source material,” as recited
in claim 1. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (holding that
the examiner bears the initial burden of establishing a prima facie case of
obviousness).
The Examiner does not adequately explain how or direct us to
sufficient evidence that Ruddy or the combination of Ruddy and Miller
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Application 13/769,401
teaches or suggests this limitation. In particular, the Examiner does not
adequately discuss how Ruddy’s neutron converting layer 22 corresponds to
the claimed layer of Compton and photoelectron source material.
None of the portions of Ruddy upon which the Examiner relies (Ans.
3—5) teach or suggest a layer of Compton and photoelectron source material
that reacts with incident gamma radiation to interact with electrons to
penetrate into the active region of the Schottky diode. See Ruddy, Figs. 3, 4,
col. 8,1. 55, col. 9,11. 23—35. Rather, as Appellants correctly point out (App.
Br. 4), Ruddy teaches a detector that includes a neutron converting layer 22
positioned over an active region 14, 16 with an insulating material 20
interposed in between. Ruddy, Abstract, col. 9,11. 3—22, Fig. 3. Ruddy
further teaches that the composition of the neutron converter layer 22 is
selected such that upon impingement by neutrons, charged particles such as
lH, 3H, 7Li and 4He ions are generated and, alternatively, fissionable
materials such as 235U, 233U, or 239Pu can be used in the form of energetic
fission fragments. Id. at col. 8,11. 49-56. Although Ruddy teaches a
neutron converter layer that in response to neutrons generates free ions that
enter the active region, it does not teach or suggest a layer of Compton and
photoelectron source material that reacts with incident gamma radiation to
interact with electrons, as claimed.
The portion of Miller that the Examiner cites (Ans. 4) also does not
teach or suggest this limitation. Specifically, paragraph 31 of Miller states:
As used herein, the terms “tamper material” and
“reflector material” are interchangeable and mean a material
that is effective at reflecting neutrons and includes, but is not
limited to, beryllium, bismuth, cesium, gadolinium, gold,
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Application 13/769,401
hafnium, iron, lead, mercury, palladium, platinum, plutonium,
polonium, silver, tantalum, thorium, tungsten, and uranium.
Indeed, Miller does not teach, suggest, or even mention a layer of Compton
and photoelectron source material, as recited in the claims.
Moreover, as Appellants note (App. Br. 4), Miller teaches a fusion
fuel container device that facilitates the transfer of a high temperature and
compression to a light nuclei for a sufficient time to combine the nuclei with
a heavier nuclei by fusion. Miller, Abstract, 17. Miller, however, does not
discuss the “neutron converting layer” or appear to be particularly relevant
to the Schottky diode detector device Ruddy discloses.
The Examiner also does not adequately discuss or explain how the
platinum used as a “reflector material” in Miller’s fusion fuel container
device (Miller 131) would perform in Ruddy’s detector or how the material
corresponds to Ruddy’s neutron converting layer 22. The mere fact that
Miller mentions platinum as a possible reflector material in a fuel fusion
container device, without more, does not persuade us that one of ordinary
skill would have had reason to combine the teachings of Miller and Ruddy to
arrive at the claimed invention. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (requiring “reasoning with some rational underpinning to
support the legal conclusion of obviousness”) (quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)).
The Examiner’s assertions that Ruddy discloses a layer 22 having
“similar material as disclosed in applicant’s own disclosure” and “layer 22
can be called as a layer of Compton and photoelectron source material”
(Ans. 7) are conclusory and, without more, insufficient to sustain the
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Examiner’s rejection. Kahn, 441 F.3d at 988 (holding “rejections on
obviousness grounds cannot be sustained by mere conclusory statements”).
We, therefore, cannot sustain the Examiner’s determination that the
combination of Ruddy and Miller suggests a radiation detector satisfying all
of the limitations of claim 1 and that the combination would have rendered
claim 1 obvious. Because claims 2—10 each depends from claim 1, we also
cannot sustain the Examiner’s rejection of these claims.
Accordingly, we reverse the Examiner’s rejection of claims 1—10
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Ruddy and Miller.
DECISION
The Examiner’s rejection of claims 1—10 is reversed.
It is ordered that the Examiner’s decision is reversed.
REVERSED
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