Ex Parte van de Weijer et alDownload PDFPatent Trial and Appeal BoardMay 24, 201713881432 (P.T.A.B. May. 24, 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. 13/881,432 10/16/2013 Peter van de Weijer 0064.107 6610 25871 7590 05/26/2017 SWANSON & BRATSCHUN, L.L.C. 8210 SOUTHPARK TERRACE LITTLETON, CO 80120 EXAMINER CROSS, XIAL ART UNIT PAPER NUMBER 2892 NOTIFICATION DATE DELIVERY MODE 05/26/2017 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): efspatents @ sbiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER VAN DE WEIJER, ANTONIUS MARIA BERNARDUS VAN MOL, EMILIE GALAND, RICHARD FRANTZ, and DIMITER LUBOMIROV KOTZEV Appeal 2016-007218 Application 13/881,432 Technology Center 2800 Before KAREN M. HASTINGS, N. WHITNEY WILSON, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 seek our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1—10 and 12 under 35 U.S.C. 103(a) as 1 Appellants identify the real parties in interest as “Nederlandse Organisatie voor toegepastnatuurwetenschappelijk onderzoek TNO, a Netherlands Research Organisation; Koninklijke Philips N.V., a Netherlands public limited liability company; and Huntsman Advanced Materials (Switzerland) GmbH, a Switzerland limited liability company” (App. Br. 3). Appeal 2016-007218 Application 13/881,432 unpatentable over Liao et al. (US 2008/0157656 Al, published July 3, 2008, “Liao”). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Claim 1 below, the sole independent claim, is illustrative of the subject matter on appeal (emphasis added to highlight key limitation for purposes of this appeal): 1. An organic opto-electric device comprising - an opto-electric element, that is encapsulated between a multilayered protective layer and a further protective layer, that form a protective enclosure for protecting the optoelectric element against atmospheric substances, the multi-layered protective layer comprising - a first ceramic layer, - a first organic layer comprising a getter material, - a second organic layer free from getter material and - a second ceramic layer, which layers of the multi-layered protective layer are stacked in the order named on the opto-electric element, wherein the first and the second ceramic layer encapsulate the first and the second organic layer, characterized in that the getter material is distributed in the first organic layer as nanometer sized particles and in that the second organic layer has a thickness of at least 10 pm. 2 Appeal 2016-007218 Application 13/881,432 ANALYSIS Upon consideration of the evidence on this record and each of Appellants’ contentions, we find that the preponderance of evidence on this record supports the Examiner’s conclusion that the subject matter of Appellants’ claims is unpatentable over the applied prior art. We sustain the Examiner’s § 103 rejection because we are unpersuaded of error in the Examiner’s determination of obviousness essentially for the reasons set out by the Examiner in the Answer. 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. There is no dispute that Liao discloses all of the elements of claim 1 except it does not specifically state that its second organic layer 13a in Fig. 4 has a vertical thickness of at least 10pm. However, Appellants concede that the lateral thickness B1 of organic layer 13a1 falls within this range (Ans. 2). One of ordinary skill would have reasonably inferred that this thickness would also apply to organic layer 13a. The Examiner aptly points out that claim 1 does not recite that the thickness must be in the up-to-down direction (id). Appellants argue that the “[Specification and claim 1 is unambiguous that thickness is intended to mean a vertical dimension” and point to the 3 Appeal 2016-007218 Application 13/881,432 description of Fig. 5 (Reply Br. 2). These arguments are not persuasive of reversible error in the Examiner’s rejection. However, Appellants’ Specification also depicts a lateral thickness of its second organic layer 36, e.g., in Fig. 6. Thus, Appellants have not directed our attention to any persuasive reasoning or credible evidence to establish that the Examiner’s interpretation that the claim encompasses the lateral thickness of Liao’s second inorganic layer is unreasonable. Indeed, it has even been established that “the fact that the [Specification describes only a single embodiment, standing alone, is insufficient to limit otherwise broad claim language.” Howmedica Osteonics Corp. v. Wright Medical Tech., Inc., 540 F.3d 1337, 1345 (Fed. Cir. 2008) {citingPhillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (enbanc); Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004)). Contrary to Appellant’s position, we agree with the Examiner that the plain language of the claim only requires that “a thickness” of the second organic layer be at least lOum, and that one of ordinary skill would have reasonably inferred that its second inorganic layer have at least a lateral thickness similar to that taught for Liao’s first organic layer of more than lOum. Moreover, even assuming arguendo that the claim requires a vertical thickness of more than lOum for the second organic layer 13a as urged by Appellants, a preponderance of the evidence supports the Examiner’s de facto position that one of ordinary skill in the art would have inferred that such a thickness was suggested for the second organic layer of Liao, and would have, using no more than ordinary creativity, used such a thickness (e.g. Final Action 4; see also Ans. 2—8). KSR Int’l Co. v. Teleflex Inc., 550 4 Appeal 2016-007218 Application 13/881,432 U.S. 398, 418 (2007) (It has been established that “the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”); see also In reFritch, 972 F.2d 1260, 1264—65 (Fed. Cir. 1992) (A reference stands for all of the specific teachings thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom.). Contrary to the Declaration, a preponderance of the evidence supports the Examiner’s position that one of ordinary skill in the art would have reasonably inferred that the thickness encompasses both a vertical direction as well as a lateral direction. While Appellants urge that the Examiner has not adequately addressed the Declaration (Reply Br. 3), the Examiner considered and addressed the Declaration (e.g., Ans. 2-4). Further, it is not reversible error to give more weight to the publication (Liao) than the testimony of an interested party.2 See Velander v. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003) (“In giving more weight to prior publications than to subsequent conclusory statements by experts, the Board acted well within [its] discretion.”); Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010) (Board has discretion to give more weight to one item of evidence over another “unless no reasonable trier of fact could have done so”); cf. In re Bulina, 362 F.2d 555, 559 (CCPA 1966) (“[A]n affidavit by an applicant or co-applicant as to the advantages of his invention is less persuasive than one made by a disinterested person.”). 2 The Declarant Dr. Akkerman works with TNO (“Declaration” 11), one of the identified real parties in interest (App. Br. 3). 5 Appeal 2016-007218 Application 13/881,432 While the Declaration urges that if all the layers were given a minimum vertical thickness of 10 micron, the stack would not be flexible (Declaration 121), we have not been directed to any objective evidence to support this conclusion. In any event, since Liao is directed to a flexible organic electroluminescent device (as is the present invention), one of ordinary skill would have been capable of determining the appropriate thickness of each of the eight (8) layers identified in Figures 4 and 5 so as to maintain the desired flexibility. While Appellants urge that the Examiner has impermissibly relied upon Liao’s figures, one of ordinary skill does not need to rely upon the drawings to reasonably infer that a thickness of each organic layer may be at the minimum of 10 pm for the vertical thickness considering that the lateral thickness may be from 10 pm up to 10mm. Appellants have not shown error in the Examiner’s determination that one of ordinary skill in the art, using no more than ordinary creativity, would have used a thickness within the claimed range for the organic layer of Liao (Ans. 4—8). KSR Int’l Co., 550 U.S. at 417 (The predictable use of known prior art elements performing the same functions they have been known to perform is normally obvious; the combination of familiar elements is likely to be obvious when it does no more than yield predictable results.); Ball Aerosol and Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (Under the flexible inquiry set forth by the Supreme Court, the PTO must take account of the “inferences and creative steps,” as well as routine steps, that an ordinary artisan would employ.). Consequently, after consideration of Appellants’ arguments, we are unpersuaded of error in the Examiner’s determination of obviousness. Accordingly, we affirm the Examiner’s prior art rejection under 35 U.S.C. 6 Appeal 2016-007218 Application 13/881,432 § 103(a) of all the claims on appeal for the reasons given above and presented by the Examiner. DECISION The Examiner’s § 103 rejection is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED 7 Copy with citationCopy as parenthetical citation