Ex Parte Juang et alDownload PDFPatent Trial and Appeal BoardJun 12, 201713158931 (P.T.A.B. Jun. 12, 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. 13/158,931 06/13/2011 Yuan-Ren JUANG 4448/0410PUS1 1477 60601 7590 06/12/2017 Muncy, Geissler, Olds & Lowe, P.C. 4000 Legato Road Suite 310 FAIRFAX, VA 22033 EXAMINER EDMONDSON, LYNNE RENEE ART UNIT PAPER NUMBER 1734 MAIL DATE DELIVERY MODE 06/12/2017 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 YUAN-REN JUANG, JEN-SHRONG UEN, and CHIH-LUNG LIN ____________ Appeal 2017-002311 Application 13/158,931 Technology Center 1700 ____________ Before JEFFREY T. SMITH, BRIAN D. RANGE, and LILAN REN, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from a Final Rejection of claims 1, 2, 6–13, 15–19, 35, 38 and 42.1 We have jurisdiction under 35 U.S.C. § 6. We REVERSE. 1 The rejection of pending claims 36-37, 39-41, 43, and 44 have been withdrawn by the Examiner. (Final Act. 8, 9; Ans. 2). Appeal 2017-002311 Application 13/158,931 2 STATEMENT OF THE CASE Appellants’ invention relates to phosphor material having high brilliance, which can be used in combination with a semiconductor light- emitting element to fabricate a light emitting device of high brilliance. (Spec. 3). Independent claim 1 is reproduced below: 1. A phosphor, comprising a constituent having formula CapSrqZnmAaBbOtNn:Eur, wherein A is selected from the group of aluminum and yttrium; B is selected from the group of silicon and germanium; 0.2≤p≤0.65; 0.342≤q≤0.792; 0≤m≤0.005; 0≤t≤0.3; 0.00001≤r≤0.l; a=l, 0.8≤b≤1.2; and 2.7≤n ≤3.1; and a normalized dissolved content of calcium of the phosphor is 1~25 ppm of weight; wherein the normalized dissolved content of calcium of the phosphor is equal to a calcium dissolved content of the phosphor in a solution/a calcium detected content of the phosphor. The Examiner maintains the following rejection: Claims 1, 2, 6–13, 15–19, 35, 38 and 42 are rejected under 35 U.S.C. § 103(a) as unpatentable over Hirosaki et al. (US 2007/0007494 A1 Pub. Jan. 11, 2007) (hereinafter Hirosaki). Appeal 2017-002311 Application 13/158,931 3 OPINION2 Upon consideration of the evidence in this appeal record in light of the respective positions advanced by the Examiner and Appellants, we determine that Appellants have identified reversible error in the Examiner’s determination that one of ordinary skill in the art would have expected the phosphor of Hirosaki to inherently have properties required by independent claims 1 and 11. Accordingly, we reverse the Examiner’s § 103(a) rejection of the above claims for the reasons set forth in the Briefs. We add the following. Appellants argue the Examiner’s rejection is improper because Hirosaki fails to disclose or suggest that the amount of Ca may be within a specific range of 0.2–0.65 and the amount of Sr may be within a specific range of 0.342–0.792. In addition, Hirosaki silent regarding any normalized dissolved content of calcium of the phosphor. In other words, Hirosaki fails to disclose, or even suggest the composition, as well as the normalized dissolved content of calcium of 1~25ppm by weight, as recited in claim 1 and of the present application. In view of the above, one skilled in the art would not find a teaching or suggestion for choosing the selected elements along with the specific ratios thereof from the very broad disclosure of Hirosaki. (App. Br. 5–8). Appellants also argue phosphors having the same formula can have different normalized dissolved content of calcium. (Id. at 6–7). Appellants argue the phosphor manufactured according to the process disclosed in Hirosaki is different from that of those manufactured by the process according to the present application. (Id. at 8–10). 2 We limit our discussion to independent claims 1 and 11. Appeal 2017-002311 Application 13/158,931 4 The Examiner has not established Hirosaki discloses or suggests that the amount of Ca may be within a specific range of 0.2–0.65 and the amount of Sr may be within a specific range of 0.342–0.792. The Examiner found Hirosaki discloses the phosphor comprising MaAbDcEdXe wherein M is at least Eu and A is Ca and Sr. (Final Act 3). The Examiner found Hirosaki’s phosphor requires M and A to be present in amounts where, a+b=1 and a within the parameter of 0.00001≤a≤0.1. (Final Act 3; Hirosaki ¶ 49). The Examiner has not identified a teaching that would have indicated both Ca and Sr would both be present within a specific range of 0.2–0.65 and 0.342– 0.792, respectively as required by the claimed invention. The Examiner also has not established that the phosphor manufactured according to the process disclosed in Hirosaki is substantially the same as those manufactured by the process according to the present application and resulting in the phosphor having the normalized dissolved content of calcium required by the claimed invention. Appellants have presented evidence from the Specification and the Declaration, submitted May 26, 2015, to establish that phosphor having the same composition does not necessarily have the same normalized dissolved content of calcium. (App. Br. 6, 14–17). The Examiner has not presented an accurate assessment of the evidence presented by Appellants. (Ans. 13). The Examiner does not appear to appreciate that the evidence establishes phosphor that is compositionally the same but is formed by different techniques does not always result in the same normalized dissolved content of calcium. Appellants also identified US 8,030,839 as providing an explanation that they believe phosphor having the same composition can have distinct microstructures thus resulting in the difference in content of Appeal 2017-002311 Application 13/158,931 5 normalized dissolved calcium. (App. Br. 10). The Examiner has not provided a persuasive technical explanation why the evidence presented is in error. For the foregoing reasons and those stated in the Brief, we determine that the Examiner’s conclusion of obviousness is not supported by facts. “Where the legal conclusion [of obviousness] is not supported by facts it cannot stand.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Accordingly, the Examiner’s rejection of claims 1, 2, 6–13, 15–19, 35, 38 and 42 over Hirosaki is reversed. ORDER The Examiner’s prior art rejections of claims 1, 2, 6–13, 15–19, 35, 38 and 42 under 35 U.S.C. § 103(a) are reversed. REVERSED Copy with citationCopy as parenthetical citation