Ex Parte Heuser et alDownload PDFPatent Trial and Appeal BoardAug 9, 201611658772 (P.T.A.B. Aug. 9, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111658,772 03/10/2008 27799 7590 08/11/2016 Cozen O'Connor 277 Park A venue, 20th floor NEW YORK, NY 10172 FIRST NAMED INVENTOR Karsten Heuser 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. 5367-282PUS-299636 2001 EXAMINER CHRISS, JENNIFER A ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 08/11/2016 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): patentsecretary@cozen.com patentdocket@cozen.com patentsorter@cozen.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KARSTEN HEUSER, ARVID HUNZE, and ANDREAS KANITZ Appeal2014-009136 Application 11/658,772 Technology Center 1700 Before TERRY J. OWENS, MARK NAGUMO, and MONTE T. SQUIRE, Administrative Patent Judges. Opinion for the Majority by OWENS, Administrative Patent Judge. Opinion Dissenting by NAGUMO, Administrative Patent Judge. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's rejection of claims 1, 8 and 11. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim an organic light emitting diode or illuminated display. Claim 1 is illustrative: 1. An organic light emitting diode or illuminated display, compnsmg: Appeal2014-009136 Application 11/658,772 at least one substrate; a lower, at least semitransparent electrode; a hole-conducting layer; an emitter layer; and an upper electrode; wherein tetravalent azahetarylene/Lewis acid complex units copolymerized in a copolymer with monomer units of polyfluorene, wherein a monomer unit is 9, 9-dialkylfluorene, wherein the copolymer is introduced into at least one of the layers, wherein the azahetarylene/Lewis acid complex units act as electron-transporting components and comprise a structural unit in accordance with the relationship: LA being a Lewis acid central atom, wherein the Lewis acid central atom is boron, L 1 and L2 being monodentate alkoxy or alkyl organic radicals, wherein the bidentate ligand of the azahetarylene/Lewis acid complex units are derivatives of 8-hydroxyquinoline and wherein the 9, 9-dialkyltluorene units are linked to the azahetarylene/Lewis acid complex units via the bidentate ligands of the 8-hydroxyquinoline-derivatives. Woo Higashi Wang (Wang '516) Wang (Wang '351) Tanaka Yamazaki The References US 2001/0026878 A 1 US 6,406,804 Bl US 2005/0156516 Al US 2002/0028351 Al US 2005/0106413 Al JP 2003-229275 A The Rejections Oct. 4, 2001 June 18, 2002 July 21, 2005 Mar. 7, 2002 May 19, 2005 Aug. 15, 2003 The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1 and 11 over Higashi in view of Yamazaki, Wang '351 and either Woo or 2 Appeal2014-009136 Application 11/658,772 Wang '516, and claim 8 over Higashi in view of Yamazaki, Wang '351, either Woo or Wang '516, and Tanaka. OPINION We reverse the rejections. We need address only the sole independent claim, i.e., claim 1. 1 Higashi discloses an organic electroluminescent device comprising a light-emitting layer containing a molecular compound having an electron- transporting unit and a hole-transporting unit bonded to each other either directly or via a linking group (col. 2, 11. 13-21). The disclosed electron- transporting units include oxadiazole derivatives and quinoline complex derivatives, the disclosed hole-transporting units include triphenylamines, and the disclosed linking groups include alkylene groups (col. 2, 11. 45-61 ). "The linking group may form a part of the electron-transporting unit or the hole-transporting unit" (col. 2, 11. 61-62). One ofHigashi's preferred molecular compounds (Formula 14) has as an electron-transporting unit two oxadiazoles attached to a fluorene derivative, and each oxadiazole has an arylene linkage to a two-triphenylamine hole-transporting unit (col. 8, 1. 51 - col. 9, 1. 10). The molecular compound also can be a copolymer having an electron-transporting unit and a hole-transporting unit, preferably both as repeating units therein (col. 10, 11. 6-10). Formula 16 shows a copolymer having repeating units of a quinoline complex-type electron-transporting unit and a two-triphenylamine hole-transporting unit (col. 10). 1 The Examiner does not rely upon Tanaka for any disclosure that remedies the deficiency in the references applied to the independent claim (Ans. 7-8, 13-14). 3 Appeal2014-009136 Application 11/658,772 The Examiner asserts that the arylene linking group Higashi's Formula 14 is a fluorene derivative (Ans. 15) and that "[d]ue to the small number of elements exemplified in the set and closely related structural nature of the exemplified biphenyl linking group elements one would at once envisage the fluorene group of Higashi copolymerized with an azahetarylene/Lewis acid complex" (Ans. 3). The Examiner does not establish that Higashi's arylene linking group is a fluorene derivative. Thus, the Examiner has not established a basis for the assertion that one of ordinary skill in the art would at once envisage a fluorene group copolymerized with anything, let alone Higashi's quinolone- type electron-transporting unit (col. 10, Formula 16) which apparently is what the Examiner refers to as an azahetarylene/Lewis acid complex. Nor does the Examiner establish, regarding the Appellants' claim l's requirement that "the 9,9-dialkylfluorene units are linked to the azahetarylene/Lewis acid complex units via the bidentate ligands of the 8- hydroxyquinoline-derivatives", that Higashi would have suggested that linkage between fluorene copolymer units and an azahetarylene/Lewis acid complex. In that regard the Examiner asserts (Ans. 15): Appellants' points of attachment and linkages must be viewed in the context of the comprising transitional term of the instant claim(s). In both the prior art and the instant claims the fluorene and hydroxyquinoline derivatives form the main polymer chain [which, as indicated above, the Examiner has not established]. The[ re] is no requirement in the instant claims that the hydroxyquinoline be directly bonded to the fluorene. The Lewis acid and fluorene need only be attached via the hydroxyquinoline. 4 Appeal2014-009136 Application 11/658,772 That assertion does not establish that Higashi would have suggested the Appellants' claim l's required linkage between fluorene copolymer units and an azahetarylene/Lewis acid complex via the bidentate ligands of 8- hydroxyquinoline-derivatives. The Examiner relies upon Woo (,-i 3) and Wang '516 (,-i 124) for disclosures of light-emitting copolymers comprising fluorene repeating units, but not for any disclosure that remedies the above-discussed deficiencies in Higashi (Ans. 6-7, 12-13). Thus, the Examiner has not set forth a factual basis which is sufficient to support a prima facie case of obviousness of the Appellants' claimed invention. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) ("A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art"). Accordingly, we reverse the rejections. DECISION/ORDER The rejections under 35 U.S.C. § 103 of claims 1 and 11 over Higashi in view of Yamazaki, Wang '351 and either Woo or Wang '516, and claim 8 over Higashi in view of Yamazaki, Wang '351, either Woo or Wang '516, and Tanaka are reversed. It is ordered that the Examiner's decision is reversed. REVERSED 5 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KARSTEN HEUSER, ARVID HUNZE, and ANDREAS KANITZ Appeal2014-009136 Application 11/658,772 Technology Center 1700 NAGUMO, Administrative Patent Judge, dissenting. Because, in my view, Appellants have not shown harmful error in the appealed rejections, I dissent, with respect. The majority finds that "[t]he Examiner does not establish that Higashi's arylene linking group is a fluorene derivative" (Op. 4, 1st full para.), and concludes for this reason alone that a basis for the conclusion that the artisan would not at once envisage a fluorene group co-polymerized with anything (id.). In my view, the Majority's understanding of the rejection- and also Appellants' understanding of the rejection-misses the point. Higashi compound 14 is shown below: Appeal2014-009136 Application 11/658,772 {Higashi compound ( 14)} The electron transporting unit (lower left) is formed by the two oxadiazole rings that are linked by the fluorene group. The hole- transporting units( upper left; right) are the pairs of tri-arylamine groups, which are linked by a direct bond. To the extent the Examiner means that the biphenyl group between the amine nitrogen and the oxadiazole ring links the electron-transporting unit to the hole-transporting unit, this is arguably error, as it contravenes the teaching that "it is also preferable that the hole- transporting unit is of a combination of triphenylamines and stilbene derivatives, or any one of the compounds." (Higashi, col. 2, 11. 53-56; emphasis added.) In this regard, it cannot be denied that the Examiner refers expressly to the "closely related structural nature of the exemplified biphenyl linking group elements" (Final Act. 3, last para.). On the other hand, Higashi refers to "linking groups" both as groups that link the hole transporting unit to the electron transporting unit, as well a group that "may form part of the electron-transporting unit or the hole transporting unit." (Higashi, col. 2, 11. 61-62; col. 19, 11. 8-9.) In general, Higashi instructs that "[t]he linking group is not specifically defined, provided that it chemically links the electron-transporting unit and the hole- transporting unit in the molecular compound without interfering with the functions of the units, and it includes a single bond." (Higashi, col. 18, 11. 41--43; emphasis added.) The term "single bond" denotes a direct link between the units, as Higashi teaches in the phrase, "a molecular compound having an electron-transporting unit and a hold-transporting unit bonded to each other directly or via a linking group." (Higashi, col. 2, 11. 15-17.) 2 Appeal2014-009136 Application 11/658,772 Thus, l understand the Examiner to hold that substitution of one arylene linking group-here, divalent fluorenyl-for another (phenylene )- obvious. 2' 3 Moreover, in an exemplary manner, the Examiner sets out three differences between the disclosures of Higashi and the claimed invention, and proceeds to explain why the invention, as a whole, would have been obvious in view of the additional cited prior art. In particular, the differences are: 9,9'-diphenyl- instead of9,9'-dialkyl-fluorene (Woo); aluminum instead of boron as the central atom of the Lewis acid moiety (Yamazaki); and the absence of alkyl or alkoxy monodentate ligands to the Lewis acid central atom (Wang '351. (Final Act. 5, 11. 3-7; 10, last line, to 11, 1. 4.) The Examiner makes findings regarding Woo, Yamazaki, and Wang, respectively, and explains why these teachings would have provided a reasonable expectation of substituting the required moieties. (Id. at 5-7.) 2 I am not unmindful that a strict reading of the words of the rejection leads to a failure of the prima facie case; but to fail to acknowledge what seems to be the clear intent of the rejection, in my view, elevates form over reason, and ends, prematurely, the exploration of the proper scope of patentable subject matter in this application. As to the ultimate disposition, I neither express nor imply an opinion one way or the other. 3 Yet another possible explanation of the rejection is the substitution of a divalent arylene linking group, such as fluorenylene, for a direct linkage (i.e., a linkage that is a single bond). It should be emphasized that it is the chemical linkage without interference with the function of the charge transporting units, not the nomenclature or the somewhat arbitrary sectioning of molecules into charge-transporting units and linkages, that must govern the analysis. 3 Appeal2014-009136 Application 11/658,772 Appellants point out that the remaining references do not discuss the role of the disclosed compounds as electron-transporting complexes or, for Woo (regarding the fluorenyl linking group), as linking groups in electron- transporting complexes. (Br. 7.) I do not find these arguments persuasive of harmful error because Appellants do not explain why the differences in applications would have diminished the reasonable expectation that the substitution of similar moieties would result in compounds in layers having similar properties. On the present record, I would affirm the rejections of record, and I therefore dissent, respectfully. 4 Copy with citationCopy as parenthetical citation