Ex Parte Heibel et alDownload PDFPatent Trial and Appeal BoardJun 27, 201713769401 (P.T.A.B. Jun. 27, 2017) Copy Citation 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.”). 2 Appeal 2016-003993 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 3 Appeal 2016-003993 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 4 Appeal 2016-003993 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, 5 Appeal 2016-003993 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 6 Appeal 2016-003993 Application 13/769,401 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 7 Copy with citationCopy as parenthetical citation