Ex Parte Wang

Patent Trial and Appeal Board

Oct 26, 2017

13084568 (P.T.A.B. Oct. 26, 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.
JW002SR 1347
EXAMINER
MCALLISTER, STEVEN B
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
13/084,568 04/12/2011
15186 7590
Jiaxiong Wang
306 Sun Stream Court
Danville, CA 94506
Jiaxiong Wang
10/27/2017 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 JIAXIONG WANG
Appeal 2015-008207
Application 13/084,5681
Technology Center 3700
Before MICHAEL C. ASTORINO, SHEILA F. McSHANE, and
AMEE A. SHAH, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL2
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’
decision rejecting claims 1, 2, 10, 12, 13, and 22. We have jurisdiction
the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 Jiaxiong Wang (“Appellant”) is the real party in interest. Br. 2. The
Appellant has filed this appeal pro se. See Br. 12.
2 This Decision refers to the Final Office Action (“Final Act.”), mailed
July 17, 2014, the Appellant’s Appeal Brief (“Br.”), filed December 20,
2014, and the Examiner’s Answer (“Ans.”), mailed April 23, 2015.
Appeal 2015-008207
Application 13/084,568
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellant’s “invention relates to a reactor that can be assembled
with modular sections to fabricate multiple component semiconductor
materials that can be used in thin film solar cells as absorbers or other fields
of applications.” Spec. 11 (filed March 15, 2014).
Claims 1 and 12 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A reactor, comprising:
a rapid thermal process (RTP) compartment;
a cooling compartment;
at least one modular heating section, installed between
said RTP compartment and said cooling
compartment, including one or more modular
thermal control components and modular reaction
chamber wall; and
a reaction oven that has an oven space enclosed by said
one or more modular thermal control components,
one or more heating elements, one or more pieces
of cooling tubing, one or more thermocouples, one
or more gas inlets to said oven space, and one or
more gas outlets to said oven space;
wherein said oven space possesses a central internal
height between 10 and 200 millimeters, and an
internal bottom width between 100 and 2000
millimeters;
wherein said reaction oven is configured in such a way
that a flexible substrate can be delivered through
said oven in a roll-to-roll process.
Rejections
Claims 10, 12, 13, and 22 stand rejected under (pre-AIA) 35 U.S.C.
§112, second paragraph, as indefinite.
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Appeal 2015-008207
Application 13/084,568
Claims 1, 2, 10, 12, 13, and 22 stand rejected under (pre-AIA) 35
U.S.C. § 103(a) as unpatentable over McMaster et al. (US 3,934,970, issued
Jan. 27, 1976) (“McMaster”) and Pinarbasi et al. (US 2009/0183675 Al,
published July 23, 2009) (“Pinarbasi”).
ANALYSIS
Rejection of claims 10, 12, 13, and 22 under (pre-AIA) 35 U.S.C. § 112,
second paragraph, as indefinite
The Appellant contends that claims 10, 12, 13, and 22 are definite and
have sufficient antecedent bases. Br. 5; see Br. 4.
The Examiner reasons that claims 10 and 22 are indefinite because the
terms “an arc top piece” and “a flat bottom piece” in claim 10’s line 7 and “a
top piece” and “a bottom piece” in claim 22’s line 2 lack sufficient
antecedent basis.3 See Final Act. 3, Ans. 14. As for claim 10, the Examiner
explains that the terms “an arc top piece” and “a flat bottom piece” were
previously introduced on two occasions in claim 10 prior to being recited for
a third time. Ans. 14. As for claim 22, the Examiner explains that the terms
“a top piece” and “a bottom piece” were previously introduced in
independent claim 12. Ans. 14. The Examiner determines that one of
ordinary skill in the art would be unsure if the claims require “two different
components of the same name or the same component (‘double inclusion’).”
Ans. 14.
The Examiner’s reasoning is not persuasive. Each of the terms at
issue in claims 10 and 22 are part of the claimed “said modular thermal
3 Cited line numbers of claims 10 and 22 are particular to the claims as
recited in the Appeal Brief at pages 13 and 14.
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Application 13/084,568
control component.” See Br. 13, 14, Claims App. The Examiner does not
explain — and we fail to understand — why one of ordinary skill in the art,
reading the terms at issue in light of the Specification, would reasonably
interpret “said modular thermal control component” to have more than one
“arc top piece” and “flat bottom piece,” with regard to claim 10, and more
than one “top piece” and “bottom piece,” with regard to claim 22. As such,
we disagree with the Examiner that the terms at issue in claims 10 and 22
may refer to “two different components of the same name.” We determine
that the terms at issue refer to the same component. For example, “a top
piece” in claim 22’s line 2 refers to the same “top piece” in claim 12’s
line9.4
Further, we note that the Examiner suggests replacing “an” and “a”
with “said” prior to the words “top piece,” “bottom piece,” “arc top piece,”
and “flat bottom piece.” Ans. 14. Although the Examiner’s suggestion to
the Appellant is valid as a matter of form (i.e., a claim objection) — and
would help to understand the claims more easily — it is not persuasive as a
matter of substance for a rejection under 35 U.S.C. § 112, second paragraph.
The Examiner rejects independent claim 12, and its dependent claims
(i.e., claims 13 and 22), because the term “said oven space” in line 8 uses
“said” prior to “oven space” without previously introducing the term “oven
space” in claim 12. Final Act. 3; Ans. 14. We note that claim 12 recites “a
reaction oven that includes . . . one or more gas inlets and one or more gas
outlets to said oven space.” Br. 13. We fail to understand why one of
ordinary skill in the art reading the term “oven space” in light of the
4 Cited line numbers of claim 12 are particular to the claim as recited in the
Appeal Brief at pages 13—14.
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Application 13/084,568
Specification would interpret “said oven space” to be something other than
the oven space associated with the “reaction oven.” Similar to a point
discussed above, the reason for the Examiner’s rejection seems to be valid as
a matter of form, but not substance.
For the reasons discussed above, we do not sustain the Examiner’s
rejection of claims 10, 12, 13, and 22 as indefinite.
Rejection of claims 1, 2, 10, 12, 13, and 22 under (pre-AIA) 35 U.S.C.
§ 103(a) as unpatentable over McMaster and Pinarbasi
The Appellant argues, “there is no convincing evidence to say that a
person having ordinary skill in the art at the time of the invention can
modify McMaster with Pinarbasi to create the present invention.” Br. 9.
The Appellant also argues, “the Examiner took a reverse way to examine the
present invention” and relies on the Appellant’s disclosure “to make a kind
of illusion that the present invention was cop[i]ed from the prior art.” Br. 7.
The Examiner responds to the Appellant’s arguments by explaining
that the conclusion of obviousness is not based on impermissible hindsight,
i.e., a reconstruction of the Appellant’s invention based on knowledge
gleaned only from the Appellant’s disclosure. Ans. 15; see also Ans. 18.
The Examiner’s conclusion of obviousness is based on the reason that
the teachings from McMaster’s furnace and Pinarbasi’s reactor would have
been combined “in order to heat a flexible material that is horizontally
conveying through a horizontal furnace in an efficient manner, thus creating
a desired final product per specified parameters.” Final Act. 5.
In this case, the Examiner’s reasoning does not explain why all of the
teachings from Pinarbasi’s sought to be combined by the Examiner would
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Application 13/084,568
have resulted in efficiently conveying a flexible material through a furnace
to produce a product of the claimed specifications. For example, the
Examiner finds that McMaster’s furnace fails to teach a reaction oven
having one or more gas inlets or outlets to said oven space, as required by
independent claims 1 and 12. See Final Act. 4. To remedy this deficiency,
the Examiner turns to teachings particular to Pinarbasi’s reactor. Final
Act. 5 (quoting Pinarbasi, Abstract “[a]t least one gas inlet is connected to
the inner space, and at least one exhaust opening connects the process gap as
well as the inner space to outside the reactor and carries any gaseous
products to outside the process gap and the primary gap of the reactor.”).
The Examiner’s reasoning, however, fails to persuasively explain why
including Pinarbasi’s teaching of a gas inlet and a gas outlet for a vacuum-
tight reaction oven benefits McMaster’s furnace. See Br. 5—8. In other
words, the Examiner fails to provide evidence or technical reasoning why
Pinarbasi’s teaching of having a gas inlet and a gas outlet in a vacuum-tight
reaction oven helps to efficiently convey material in McMaster’s furnace or
to create a desired final product per specified parameters. As such, we
determine that the Examiner’s legal conclusion of obviousness cannot be
sustained. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections
on obviousness grounds . . . [require] some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.”)
(cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007)).
Thus, we do not sustain the Examiner’s rejection of claims 1,2, 10,
12, 13, and 22 as unpatentable over McMaster and Pinarbasi.
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Application 13/084,568
DECISION
We REVERSE the Examiner’s decision rejecting claims 1,2, 10, 12,
13, and 22.
REVERSED
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