Ex Parte LI et al

Patent Trial and Appeal BoardApr 22, 2016

13259444 (P.T.A.B. Apr. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/259,444 09/23/2011 Jingjing Li 56436 7590 04/26/2016 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 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. 82853066 8909 EXAMINER SHAMSUZZAMAN, MOHAMMED ART UNIT PAPER NUMBER 2897 NOTIFICATION DATE DELIVERY MODE 04/26/2016 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): hpe.ip.mail@hpe.com mkraft@hpe.com chris.mania@hpe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JING JING LI, DAVID A. F ATTAL, LARS HELGE THYLEN, MICHAEL RENNE TY TAN, and SHIH-YUAN WANG Appeal2014--005682 Application 13/259 ,444 Technology Center 2800 Before ROMULO H. DELMENDO, KAREN M. HASTINGS, and N. WHITNEY WILSON, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. Â§ 134 of the Examiner's final decision rejecting claims 1--4 and 16.2 We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We AFFIRM. Claim 1 is representative of the claimed invention (emphasis added): 1. A light-emitting diode comprising: a plurality of portions comprising: 1 The Real Party in Interest is stated to be Hewlett-Packard Development Company, LP (App. Br. 2). 2 Claims 5-15 were withdrawn subject to a restriction requirement (Final Rej. 1, 7, 11). Appeal2014--005682 Application 13/259,444 a p----doped portion of a semiconductor, an intrinsic portion of said semiconductor, and a n---doped portion of said semiconductor, said intrinsic portion disposed between said p--- doped portion and said n---doped portion and forming a p---i junction with said p---doped portion and an i-n junction with said n-doped portion; and a metal-dielectric-metal structure comprising: a first metal layer; a second metal layer; and a dielectric medium disposed between said first metal layer and said second metal layer; wherein metal layers of said metal-dielectric-metal structure are disposed about orthogonally to said p-i junction and said i- n junction, said dielectric medium comprises said intrinsic portion, and said metal-dielectric-metal structure is configured to enhance modulation frequency of said light-emitting diode through interaction with surface plasmons that are present in said first metal layer and said second metal layer. At the outset, we note that the Examiner finally rejected claims 1--4 on the ground of nonstatutory obviousness-type double patenting over claims 1---6 of Cho (U.S. Patent 8,129,710, issued Mar. 6, 2012) (Final Rej. 2-5). Appellants do not present any arguments traversing this double-patenting rejection (Br. 5---6 and generally). Accordingly, this rejection is summarily affirmed. The Examiner also maintains, and Appellants appeal, the rejections of claims 1and2 under 35 U.S.C. Â§ 102(b) as anticipated by Green (U.S. Pre- Grant Publication 2005/0017257, published Jan. 27, 2005), and of claims 3, 4, and 16 under 35 U.S.C. Â§ 103(a) as being obvious over Green in view of Yamazaki (U.S. Patent 7,528,418, issued May 5, 2009) (Final Rej. 5-9; App. Br. 5). 2 Appeal2014--005682 Application 13/259,444 Appellants present arguments focusing on independent claim 1, with arguments concerning the other claims stating that the claims are allowable for the same reasons as claim 1 and that the additional reference in the obviousness rejection does not cure the deficiencies of Green with respect to claim 1 (See App. Br., generally). As such, claim 1 is the focus of the appeal, with all of the claims standing or falling together. ANALYSIS We have thoroughly reviewed each of Appellants' arguments for patentability. However, we determine that a preponderance of the evidence supports the Examiner's finding that the claimed subject matter of representative claim 1 is anticipated within the meaning ofÂ§ 102 in view of the applied prior art of Green. Accordingly, we will sustain the Examiner's rejection for essentially those reasons expressed in the Answer, including the Examiner's Response to Argument section, and we add the following primarily for emphasis. "[T]he PTO must give claims their broadest reasonable construction consistent with the specification. . . . Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation." In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). "[A]s applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee." Id. Appellants and the Examiner dispute whether Green's light-emitting diode has metal layers in the metal-dielectric-metal structure that are "disposed about orthogonally to" the p---i junction and the i-n junctions between the p---doped and n---doped portions with the non-doped intrinsic 3 Appeal2014--005682 Application 13/259,444 portion of the semiconductor and whether Green's diode has a dielectric structure that "comprises said intrinsic portion" of the semiconductor (App. Br. 7-9; Ans. 3-5). Appellants' position is that Green's light-emitting diode features curved junctions between the doped portions and the intrinsic portion, where the metal layers do not overlap or contact either intrinsic portion or the doped portions (App. Br. 7-8). According to Appellants, Green's metal layers are not "disposed about orthogonally" to the junctions because the junctions and metal layers are not orthogonal and because the layers do not contact or abut the junctions orthogonally (App. Br. 8; Reply Br. 2). Additionally, Appellants argue that Green's silicon dioxide dielectric layers isolate the metal layers from the silicon layer, which the Examiner equates to the intrinsic portion in the rejection, so Green's dielectric medium does not comprise the intrinsic portion as claimed (App. Br. 9-10). Finally, Appellants point to Green's Paragraph 77, whichstates that the device in Figure 4 is similar to a standard metal-oxide-semiconductor field-effective- transistor but with the polarity reversed, so it does not have the claimed structure (Reply Br. 3). Appellants' argument is not persuasive of reversible error. The current claim language only requires that the metal layers "are disposed about orthogonally" to the junctions. Appellants have not directed us to any specific standard for "about", nor any special definition for "orthogonal" in the Specification. The plain meaning of the term "orthogonal" is the standard definition of "intersecting or lying at right angles." As shown in Green's Figure 4, the metal layers are situated to lie at approximately right angles to the p---i and i-njunctions (Ans. 2--4). The claim language does not require that the metal layers perpendicularly abut the uppermost section of 4 Appeal2014--005682 Application 13/259,444 the junctions, and therefore, the silicon dioxide layers being between the silicon and the metal layers does not exclude Green from disclosing the metal layers' positioning or that the dielectric medium comprises the intrinsic portion (see Ans. 4--5). Lastly, Appellants have not explained how the claimed invention differs from Green's metal-oxide-semiconductor field---eff ecti ve-transistor. Thus, a preponderance of the evidence supports the Examiner's position (Ans. generally). Notably, Appellants have not directed our attention to any persuasive reasoning or credible evidence to establish that the Examiner's interpretation is unreasonable, nor to any portion of the Specification that limits the definition of "disposed about orthogonally" to exclude the light-emitting diode structure of Green as pointed out by the Examiner. Accordingly, we affirm the Examiner's anticipation rejection. No further substantive arguments were made regarding the Â§ 103 rejections. Thus, we also affirm the Â§ 103 rejections. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136. ORDER AFFIRMED 5