Ex Parte van de Weijer et al

Patent Trial and Appeal Board

May 24, 2017

13881432 (P.T.A.B. May. 24, 2017)

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.
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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
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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
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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).
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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.
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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
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