Ex Parte Purchase et al

Patent Trial and Appeal Board

Aug 29, 2014

12506915 (P.T.A.B. Aug. 29, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/506,915 07/21/2009 Ken G. Purchase 9409-46 4952
20792 7590 08/29/2014
MYERS BIGEL SIBLEY & SAJOVEC
PO BOX 37428
RALEIGH, NC 27627
EXAMINER
GRAMLING, SEAN P
ART UNIT PAPER NUMBER
2875
MAIL DATE DELIVERY MODE
08/29/2014 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 KEN G. PURCHASE, WILLIAM R. LEFEW,
ROBERT L. WOOD and ROBERT M. SOULE III
______________

Appeal 2012-006673
Application 12/506,915
Technology Center 2800
_______________

Before CHARLES F. WARREN, BEVERLY A. FRANKLIN, and
KAREN M. HASTINGS, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicants appeal to the Board under 35 U.S.C. § 134(a) from the
decision of the Primary Examiner finally rejecting claims 2-19 and 25-33:
under 35 U.S.C. § 102(e), claims 2, 3, 5, 8-20, and 25-33 over Chen (US
2008/0089063 A1); and under 35 U.S.C. § 103(a), claims 4, 6, and 7 over
Chen. Appeal Br. 4, 12; Ans. 4, 11. We have jurisdiction. 35 U.S.C. § 6(b).
We reverse the decision of the Primary Examiner.
Claim 13 illustrates Appellants’ invention of a diffuser that “is
generally provided to diffuse the light that is emitted from [a] light source,
so as to homogenize the light and reduce direct visibility of the light source
to a viewer” and is used, for example, in an apparatus that has a plurality of
light sources such as an LCD TV (Spec. ¶¶ 0003, 0020), and is
representative of the claims on appeal:
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Application 12/506,915
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13. A diffuser that is configured to diffuse radiation from a plurality
of light sources having a predetermined spacing therebetween, the diffuser
comprising:
a substrate having first and second opposing faces; and
an array of microstructures on the first face, the microstructures in the
array including at least one feature that varies as a function of the
predetermined spacing between the plurality of light sources;
wherein the array of microstructures comprises an array of repeating
unit cells of microstructures, the microstructures in a respective repeating
unit cell being defined by the at least one feature that varies as a function of
the predetermined spacing between the plurality of light sources; and
wherein the unit cells progressively change as a function of relative
position on the substrate, in addition to varying as a function of the
predetermined spacing between the plurality of light sources.
Appeal Br. 15-16 (App’x A - Claims).
OPINION
Appellants argue the principal ground of rejection over Chen on
independent claims 13, 15, 18, and 19, the dependent claims standing or
falling with the independent claim. App. Br. 4. The issue with respect to
each claim is whether the Examiner erred in finding as a matter of fact that
Chen describes to one skilled in the art an embodiment of a diffuser that falls
within the claim. See, e.g., Am. Calcar, Inc. v. Am. Honda Motor Co., Inc.,
651 F.3d 1318, 1341 (Fed. Cir. 2011); Sanofi-Synthelabo v. Apotex Inc.,
550 F.3d 1075, 1083 (Fed. Cir. 2008); In re Schreiber, 128 F.3d 1473, 1477
(Fed. Cir. 1997); In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990). In
order to consider the rejection of the claims, we first give the terms in the
limitations in each claim the broadest reasonable interpretation consistent
with the Specification as it would be interpreted by one of ordinary skill in
the art. See, e.g., In re Suitco Surface, Inc., 603 F.3d 1255, 1259-60 (Fed.
Cir. 2010); In re Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir.
Appeal 2012-006673
Application 12/506,915
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2007); In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In re Zletz,
893 F.2d 319, 321-22 (Fed. Cir. 1989).
We determine that claim 13 specifies a diffuser plate which comprises
an array of “repeating unit cells of microstructures,” wherein (1) the
microstructures “in a respective repeating unit cell” are defined by at least
any one feature, such as shape, that varies as a function of the predetermined
spacing of the light sources, and (2) each of “the unit cells progressively
change as a function of relative position [of each unit cell] on the substrate”
of the diffuser. Spec. ¶¶ 0028, 0030, Figs. 2A-2H, 2J. We note, in this
respect, that while we do not find in the Specification a description of “unit
cells [that] progressively change as a function of relative position [of each
unit cell] on the substrate,” we find a description of a progressive change in
the shapes of microstructures in a periodic lattice of microstructures in a unit
cell. Spec. ¶ 0030, Fig. 2J. See Appeal Br. 5-7 (citing Spec. Figs. 2I, 2J).
Thus, we are of the view that not only must the microstructures in a unit cell
vary in at least one feature based on the predetermined spacing of the light
sources, but must further vary based on the location of the unit cell on the
substrate of the diffuser.
We agree with Appellants that the Examiner erred in finding that
Chen describes an embodiment falling within claim 13. While the Examiner
correctly finds that Chen describes embodiments wherein the shapes of
microstructures 531 (cambered) and 551 (prism lens) vary based on the
predetermined spacing of the light sources within the respective
light-scattering areas 530 and light-gathering areas 550, which are
designated “unit cells” by the Examiner, the Examiner has not established
that any of the “unit cells” 530, 550 progressively change as a function of
the position of the unit cell on the substrate of the diffuser, as Appellants
Appeal 2012-006673
Application 12/506,915
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contend. Ans. 4-5, 13-14 (citing Chen ¶¶ 0027-0038, Figs. 4, 7-9); Appeal
Br. 5-7 (citing Chen ¶ 0037, Fig. 9); Reply Br. 4 (citing Chen ¶ 0037, Figs.
4, 9).
On this record, we reverse the ground of rejection of claims 13, 14,
and 25-27 over Chen.
Independent claim 15 specifies, in pertinent part, a diffuser “wherein
the array of microstructures comprises a plurality of first and second
microstructures that are interspersed among one another on the first face and
wherein the at least one feature varies a relative proportion of first and
second microstructures that are interspersed among one another as a function
of the predetermined spacing between the plurality of light sources.” Appeal
Br. 16 (App’x A - Claims). We determine that the plain language of claim
15 requires that the relative proportions of interspersed first microstructures
and second microstructures vary as a function of the predetermined spacing
between the plurality of light sources. Spec. ¶ 0030, Fig. 3. See Ans. 15;
Appeal Br. 7-8 (citing Spec. Fig. 3). We agree with Appellants that the
Examiner erred in finding that Chen describes an embodiment falling within
claim 15. Ans. 6, 15-16 (citing Chen ¶¶ 0027-0038, Figs. 4-9); Appeal Br.
8-9 (citing Chen ¶ 0030, Figs. 4-9); Reply Br. 4 (citing Chen Fig. 4). We
find that, as Appellants point out, Chen does not describe to one skilled in
the art an embodiment in which the relative proportion of 6 microstructures
531 (cambered) to 10 microstructures 551 (prism lens) within the respective
light-scattering areas 530 and light-gathering areas 550 interposed among
one another on the substrate of the diffuser, varies as a function of the
predetermined spacing between the plurality of light sources, as the
Examiner contends. Chen ¶¶ 0012, 0013, 0030-0034, 0039, Figs. 4, 9.
Appeal 2012-006673
Application 12/506,915
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On this record, we reverse the ground of rejection of claims 15 and
28-30 over Chen.
Independent claim 18 specifies, in pertinent part, a diffuser “wherein
at least one feature of the microstructures in the array also varies as a
function of a position of a microstructure relative to an edge of the substrate,
in addition to varying as a function of the predetermined spacing between
the plurality of light sources.” Appeal Br. 17 (App’x A - Claims). We
determine that the plain language of claim 18 requires that at least one
feature of the microstructures, such as size, varies as function a position of
the microstructure relative to the edge of the substrate of a diffuser. Spec.
¶ 0040, Fig. 6. See Appeal Br. 9-10 (citing Spec. Fig. 6). We agree with
Appellants that the Examiner erred in finding that Chen describes an
embodiment falling within claim 18. Ans. 7-8, 16-17 (citing Chen
¶¶ 0027-0038, Figs. 4-9); Appeal Br. 9-11 (citing Chen ¶ 0035, Fig. 8);
Reply Br. 6 (citing Chen Figs. 4, 8). We find that, as Appellants point out
and contrary to the Examiner’s position, Chen’s Figures 4 and 8 describe
that the size and shape of the microstructures 551 (prism lens) in
light-gathering areas 550 are consistent as this array alternates with the
microstructures 531 (cambered) in light-scattering areas 530 beginning at the
edge and containing across the substrate of the diffuser. Chen ¶¶ 0012,
0013, 0030-0034, 0036, 0037, Figs. 4, 8, 9.
On this record, we reverse the ground of rejection of claims 18 and
31-33 over Chen.
Independent claim 19 specifies, in pertinent part, a diffuser “wherein
at least one feature of the microstructures in the array also varies randomly
or psuedorandomly independent of the predetermined spacing between
spacing between the plurality of light sources, in addition to varying as a
Appeal 2012-006673
Application 12/506,915
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function of the predetermined spacing between the plurality of light
sources.” Appeal Br. 17 (App’x A - Claims). We determine that, as
Appellants submit and contrary to the Examiner’s position, the claim term
“pseudorandom” is used in context with its ordinary dictionary meaning
“[o]f, relating to, or being random numbers generated by a definite,
nonrandom computational process.” See, e.g., The American Heritage
Dictionary of the English Language 1414 (4th ed. 2000). Ans. 18; Reply Br.
5. We agree with Appellants that the Examiner erred in finding that Chen
describes an embodiment falling within claim 19. Ans. 8-9, 17-18 (citing
Chen ¶¶ 0027-0038, Figs. 4-9); Appeal Br. 11-12 (citing Chen ¶ 0035, Fig.
8); Reply Br. 5 (citing Chen Fig. 8). We find that, as Appellants point out
and contrary to the Examiner’s position, Chen’s Figures 4 and 8 describe
that the variation in the shape and size of microstructures 531 (cambered)
and 551 (prism lens) based on the predetermined spacing of the light sources
within the respective light-scattering areas 530 and light-gathering areas 550
is consistent across the substrate of the diffuser and thus is neither random
nor pseudorandom. Chen ¶¶ 0012, 0013, 0036, Figs. 8.
On this record, we reverse the grounds of rejection of claims 2-12, 16,
and 19 over Chen.
The Primary Examiner’s decision is reversed.
REVERSED

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