Ex Parte Visser et al

Patent Trials and Appeals Board

May 27, 2014

12341134 - (D) (P.T.A.B. May. 27, 2014)

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.
12/341,134 12/22/2008 Robert Jan Visser VIT 0077 PA/69677.2 1373
23368 7590 05/28/2014
DINSMORE & SHOHL LLP
FIFTH THIRD CENTER, ONE SOUTH MAIN STREET
SUITE 1300
DAYTON, OH 45402-2023
EXAMINER
SANTIAGO, MARICELI
ART UNIT PAPER NUMBER
2879
MAIL DATE DELIVERY MODE
05/28/2014 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 ROBERT JAN VISSER and LORENZA MORO
__________

Appeal 2012-005558
Application 12/341,134
Technology Center 2800
____________

Before JEFFREY T. SMITH, MICHAEL P. COLAIANNI, and
GEORGE C. BEST, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1-22. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM-IN-PART. Specifically, we REVERSE the § 102 (b)
rejection and enter a new ground of rejection pursuant to 37 C.F.R.
§ 41.50(b). We AFFIRM the § 103 rejections of record.
Appellants’ invention is said to be directed to methods of making an
integrated barrier and optical enhancement stack (e.g., reference numerals
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115 or 215) for protecting and improving the light out coupling of an
encapsulated (i.e., barrier coatings 110 or 210 and protection layer 105 or
205) organic light emitting device (OLED, i.e., ref. no. 100 or 200) (Spec.
¶ [0025]; Figs. 14 and 15).
Claims 1 and 11 are illustrative:
1. A method of making an integrated barrier and optical enhancement
stack for protecting and improving the light out coupling of an encapsulated
OLED comprising;
providing an OLED having at least two colors selected from red,
green, or blue, and a transparent electrode;
selecting an initial inorganic barrier layer having a refractive index in
a range of about 1.55 to about 2, the initial inorganic barrier layer adjacent to
the transparent electrode in the OLED;
optimizing a thickness of the initial inorganic barrier layer for the
OLED within a range of about 40 nm to about 240 nm;
selecting a barrier stack comprising an inorganic barrier layer and a
polymeric decoupling layer, the inorganic barrier layer having a refractive
index in a range of about 1.55 to about 2, and the polymeric decoupling
layer having a refractive index in a range of about 1.4 to about 1.65, the
barrier stack adjacent to the initial inorganic barrier layer; and
optimizing a thickness of the inorganic barrier layer within a range of
about 20 nm to about 80 nm and the polymeric decoupling layer of the
barrier stack within a range of about 0.2 μm to about 4 μm;
wherein the thickness of at least one of the initial inorganic barrier
layer, the inorganic barrier layer, or the polymeric decoupling layer is
optimized for at least one of maximum efficiency, minimum dispersion, or
minimum spectral shift, so that the encapsulated OLED has enhanced light
outcoupling compared to a bare OLED;
depositing the initial inorganic barrier layer having the optimized
thickness adjacent to the transparent electrode of the OLED; and
depositing the barrier stack having the optimized thickness for the
inorganic barrier layer and the polymeric decoupling layer adjacent to the
initial inorganic layer.

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11. A method of making an integrated barrier and optical
enhancement stack for protecting and improving the light out coupling of an
encapsulated OLED comprising;
providing an OLED having at least two colors selected from red,
green, or blue, and a transparent electrode;
selecting a plasma protective layer having a refractive index in a range
of about 1.1 to about 1.9, the plasma protective layer adjacent to the
transparent electrode in the OLED; and
optimizing a thickness of the plasma protective layer for the OLED
within range of about 20 nm to about 50 nm;
selecting an initial inorganic barrier layer having a refractive index in
a range of about 1.55 to about 2, the initial inorganic barrier layer adjacent to
the plasma protective layer;
optimizing a thickness of the initial inorganic barrier layer for the
OLED within a range of about 40 nm to about 240 nm;
selecting a barrier stack comprising an inorganic barrier layer and a
polymeric decoupling layer, the inorganic barrier layer having a refractive
index in a range of about 1.55 to about 2, and the polymeric decoupling
layer having a refractive index in a range of about 1.4 to about 1.5, the
barrier stack adjacent to the initial inorganic barrier layer; and
optimizing a thickness of the inorganic barrier layer within a range of
about 20 nm to about 80 nm and the polymeric decoupling layer of the
barrier stack within a range of about 0.2 μm to about 4 μm;
wherein the thickness of at least one of the plasma protective layer,
the initial inorganic barrier layer, the inorganic barrier layer, or the
polymeric decoupling layer are optimized for at least one of maximum
efficiency, minimum dispersion, or minimum spectral shift so that the
encapsulated OLED has enhanced light outcoupling compared to a bare
OLED[;]
depositing the plasma protective layer having the optimized thickness
adjacent to the transparent electrode of the OLED;
depositing the initial inorganic barrier layer having the optimized
thickness adjacent to the plasma protective layer; and
depositing the barrier stack having the optimized thickness for the
inorganic barrier layer and the polymeric decoupling layer adjacent to the
initial inorganic barrier layer.

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Appellants appeal the following rejections:
1. Claims 1, 4, 6-10, and 20 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Weaver et al. (US 2003/0127973 A1, published
Jul. 10, 2003).
2. Claims 2, 3, 11, 12, 14-19, 21, and 22 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Weaver in view of Moro et al.
(US 2006/0216951 A1, published Sept. 28, 2006).
3. Claim 5 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Weaver in view of Fukuoka et al. (US 6,469,438 B2, patented
Oct. 22, 2002).
4. Claim 13 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Weaver in view of Moro and Fukuoka.

Regarding rejections (1) and (2), Appellants argue the subject matter
of claims 1, 6-8, 10, 11, 14-16, and 19. Regarding rejections (3) and (4),
Appellants argue that Fukuoka fails to remedy the alleged deficiencies in
Weaver and Moro (App. Br. 24-25). Accordingly, claims 5 and 13 will
stand or fall with our analysis of claims 1 and 11.

Independent Claims 1 and 11
As a threshold matter, we find that we cannot sustain the rejection of
claim 1 under § 102(b) over Weaver because Weaver does not describe the
claimed subject matter so as to anticipate the claims. Accordingly, we
reverse the Examiner’s § 102(b) rejection over Weaver.
However, we enter a new ground of rejection of claims 1, 4, 6-10, and
20 under 35 U.S.C. § 103 over Weaver. As found by the Examiner, Weaver
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teaches that goal of the patented process is to provide an OLED that has an
increased out-coupling efficiency that results in a more luminous display
(Ans. 15; Weaver, ¶ [0013]). Weaver, as found by the Examiner in the
Answer on pages 4-5, teaches inorganic barrier layers and polymeric
decoupling layers with thickness ranges and refractive indices that overlap
or are encompassed by those required by the claims. Appellants do not
contest that Weaver discloses using the same materials for the inorganic
barrier layers and polymeric decoupling layers as those materials disclosed
by Appellants in their Specification (Ans. 15). Accordingly, we conclude
that it would have been obvious to use thicknesses of the inorganic barrier
layer and polymeric decoupling layer within the claimed ranges because the
ranges overlap with those disclosed in Weaver. In re Peterson, 315 F.3d
1325, 1329 (Fed. Cir. 2003) (“In cases involving overlapping ranges, we and
our predecessor court have consistently held that even a slight overlap in
range establishes a prima facie case of obviousness.”).
While Appellants contend that Weaver does not teach optimizing the
thicknesses of the inorganic barrier layer or the polymeric decoupling layer
(App. Br. 12-17), we note that Weaver teaches that the thicknesses ranges
for the various layers are preferred ranges and that the goal is to achieve an
increase in outcoupling (Weaver, ¶¶ [0013], [0047], [0049]). Accordingly,
we find that Weaver’s focus on the layer thicknesses indicates that they are
important variables in achieving the increase in out-coupling. Accordingly,
one of ordinary skill in the art would have optimized the thicknesses to be
within the preferred ranges which overlap with the claimed ranges in order
to achieve an increase in out-coupling.
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Appellants contend that Weaver focuses solely on the use of particles
to achieve the increase in out-coupling (App. Br. 10-12). However, even if
Weaver discloses that particles aid in increasing the outcoupling, Weaver
does not dissuade one of ordinary skill in the art from further controlling the
thicknesses of the layers as found by the Examiner (Ans. 15). Indeed,
Weaver actually teaches preferred thickness ranges for the various layers,
which seemingly underscore the importance of these layer thicknesses.
Moreover, the presence of particles in Weaver’s OLED device is not
excluded from Appellants’ claims. The claims use the open-ended transition
language “comprising.”
Regarding claim 11, Appellants advance similar arguments as made
regarding Weaver’s failure to teach optimizing of the layer thicknesses to
achieve an increase in outcoupling (App. Br. 20-22). We find these
arguments unavailing for the same reasons noted supra. Appellants further
argue that Moro does not teach a method of making integrated barrier and
optical enhancement stack (App. Br. 22). Appellants contend that Moro
simply discloses a range of thicknesses but does not teach or suggest
optimizing any layer for at least one of maximum efficiency, minimum
dispersion, or minimum spectral shift (App. Br. 22).
Moro teaches that OLEDs formed with a barrier stack may be
damaged by the plasma treatment used to form the layers (Moro ¶ [0013]).
Moro teaches forming a plasma protection layer over OLEDs prior to
forming the barrier and polymeric decoupling stack to protect the OLED
from the plasma used during the deposition process (Moro ¶ [0013], [0019]).
While Moro does not teach controlling the plasma protective layer for the
purpose of increasing outcoupling, Moro does teach the importance of layer
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thickness in forming a suitable encapsulated OLED (Moro, ¶¶ [0007],
[0037], [0039], [0041], [0043]). Weaver, as noted above, teaches that layer
thicknesses are important variables in forming a device with increased
outcoupling.
Accordingly, the teachings of Weaver and Moro taken as a whole
would have suggested forming a plasma protection layer over Weaver’s
OLED prior to forming the stack of barrier and decoupling layers in order or
protect the OLED during a plasma deposition process. One of ordinary skill
following Weaver’s teachings would have optimized the thickness of the
plasma protective layer to be within the claimed range of 20 to 50 nm in
order to achieve Weaver’s goal of increased outcoupling. Indeed, Moro
teaches that the plasma protective layer requires a thickness of at least 300
angstroms (i.e., 30 nm), which is within the claimed range for the plasma
protective layer.
Moreover, the Examiner finds that Moro teaches the same material
and the same thickness for the plasma protection layer as is claimed and
disclosed by Appellants (Ans. 17-18). The Examiner finds that because the
same materials and thicknesses are disclosed by Moro, the plasma protection
layers’ effect on the maximum efficiency, minimum dispersion, or minimum
spectral shift (i.e., the factors that affect outcoupling) would have reasonably
been expected to be the same as is achieved by Appellants. Id. This finding
is not addressed by Appellants (Reply Br. generally).

Dependent Claims 6-8, 10, 14-16, and 19
Appellants argue that Weaver does not teach that the maximum
efficiency is increased by at least about 20%, 40% or 50% compared to a
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bare OLED as required by claims 6-8 or 14-16 (App. Br. 17, 22-23).
Appellants contend that Weaver and does not teach the claimed method that
includes selection and optimization steps. Id. Appellants argue that Weaver
and Moro fail to teach that a method that forms an encapsulated device
which exhibits an intentional spectral shift (App. Br. 18, 23).
In claims 6-8 and 14-16, Appellants claim the resulting increase in
maximum efficiency of the encapsulated OLED (i.e., product) achieved by
practicing the process relative to the maximum efficiency of a bare OLED.
In other words, the claims recite the property of the resulting product
achieved by practicing the method.
In the present case, Weaver and Weaver in view Moro teach the layers
of an encapsulated OLED made from the same materials disclosed by
Appellants with overlapping thicknesses. As noted supra, optimization of
the layer thicknesses within the claimed ranges would have been reasonably
expected to produce the increase in maximum efficiency recited in claims 6-
8 and 14-16 or the intentional spectral shift recited in claims 10 and 19.
Where the prior art products are produced by identical or substantially
identical processes, the PTO can require Appellants to prove that the prior
art products do not necessarily possess the properties of the claimed product.
In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
We find that Weaver would have suggested optimizing the layers to
affect outcoupling and the properties associated with out-coupling, such as
maximum efficiency, minimum dispersion, and minimum spectral shift as
stated in the claims. As found by the Examiner, Weaver teaches the
manufacture of a multilayer integrated barrier using the same materials and
preferred thicknesses as disclosed by Appellants (Ans. 16). Appellants do
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not contest that Weaver and Moro teach using the same materials in
overlapping thicknesses to those disclosed and claimed by Appellants.
Therefore, we find that the ordinary artisan would have optimized the
thicknesses of the layers to be within the claimed ranges to increase out-
coupling of the light. As disclosed by Appellants, maximum efficiency,
minimum dispersion, and minimum spectral shift are qualities of the light
that affect outcoupling of the light (Spec. ¶ [0036]). Because the same
materials are used in overlapping thickness ranges, it is reasonable to find
that the optimized thicknesses to increase outcoupling would have also had
the claimed maximum efficiencies and intentional spectral shift. Appellants
have the burden of showing us otherwise, and they have not provided any
evidence that the method of Weaver or the method of Weaver as modified
by Moro would not have resulted in the claimed an encapsulated OLED with
the claimed properties. Best, 562 F.2d at 1255.
DECISION
On this record, we reverse the Examiner’s § 102 rejection. We affirm
the Examiner’s § 103 rejections. We also enter a new ground of rejection
pursuant to 37 C.F.R. § 41.50(b) under § 103 of claims 1, 4, 6-10, and 20
over Weaver.

TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960
(August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)).
37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review.
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37 C.F.R. § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner . . . .

(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record . . . .

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
 

ORDER
AFFIRMED-IN-PART & NEW GROUND OF REJECTION
PURSUANT TO 37 C.F.R. § 41.50(b).

cdc