DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Claims 1-15 remain pending in this application. Acknowledgement is made of the amendment received 04/30/2026. Claims 13 and 14 remain withdrawn, claims 1-14 are amended, and claim 15 is added for consideration.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 15 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 15, it recites the limitation " the medium" in line 2. There is insufficient antecedent basis for this limitation in the claim. The examiner interprets the claim to have intended to state “a medium”, in which case proper antecedent basis is established. The claim will be examined on the basis of this interpretation hereafter. Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4, 11, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Jang et al (US 20100133570 A1, hereafter Jang) in view of Sano et al (US 20100091376 A1, hereafter Sano).
Regarding claim 1, Jang teaches: An optoelectronic device (Jang 100/200, ¶0029, 0041, figs 1, 2) comprising:
an emissive structure (Jang 120, ¶0029, fig 1)
at least a part of which is formed of one or more semiconductor materials (Jang ¶0030, “semiconductor layers 101 and 103 and the active layer 102 of the light emission structure 120”),
configured to produce a luminous radiation when the emissive structure has an electric current flowing therethrough (Jang ¶0030, “active layer 102 generates light by the recombination of electron-hole pairs”), said luminous radiation being produced within the emissive structure (Jang ¶0034, fig 1, generated in 102) and having an average wavelength λ (Jang ¶0005, “blue light”, MPEP 2112.01),
the emissive structure having an average optical index n (Jang ¶0006, 0035, MPEP 2112.01) and being delimited by an outlet surface (Jang top surface of 103/203, fig 1, 2, ¶0032, 0035), through which at least a part of said luminous radiation exits (Jang fig 1, ¶0035), and
an antireflective structure (Jang “light extraction patterns”, 103a, 103b, “grooves”, fig 1, ¶0032, 0035, 0058, under a broadest reasonable interpretation of “antireflective”, Jang 103a/103b is at least capable of reducing a reflection of a portion of light emitted from 102, “the light can be extracted through the interface”, see MPEP 2111, 2114) located at the outlet surface (Jang fig 1, 4D),
wherein the antireflective structure comprises a periodic grating (Jang “grooves”, 103a, 103b) which includes hallow parts (Jang “grooves”, ¶0033, 0058, fig 4D) and protruding parts (Jang 103a, 103b, ¶0032, fig 1) forming a regular periodic structure with a pitch (a)(Jang ¶0036, “spaced from each other at an interval ranging from 0.05 µm to 1.5 µm”, fig 1, 4D), and
wherein the antireflective structure is configured to reduce reflection, at the outlet surface, of the luminous radiation produced within the emissive structure (Jang ¶0035, MPEP 2111.04 states that claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure. It appears that the claim language “configured to” does not limit a claim to a particular structure. In this instant case, “configured to reduce reflection, at the outlet surface, of the luminous radiation produced within the emissive structure”).
Jang does not explicitly teach: the periodic grating of the antireflective structure comprises a sub-wavelength periodic grating with a pitch (a) lower than λ/[2.n].
Sano, in the same field of endeavor of semiconductor device manufacturing, teaches: an antireflective structure (Sano ¶0005-0006) comprising a sub-wavelength (Sano ¶0053, “pitch smaller than the wavelength λ”) periodic grating (Sano 012, 012a, 012b, fig 1) with a pitch (a)(Sano P, ¶0038).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust the pitch of the antireflective structure of Jang, such that it is in the lower range of the pitch as taught by Jang (I), and such that it has “a pitch (a) lower than λ/[2.n]”, and there by such that the antireflective structure of Jang is “a sub-wavelength periodic grating”, as taught by Sano, in order to optimize for incident angle characteristics (San ¶0048).
Examiner’s note: Jang, in at least one embodiment teaches blue light emission from a GaN active layer (Jang ¶0005, 0030). Therefore, for n=2.45 at λ=450 nm, (a) = λ/[2.n] = (450nm)/[2*2.45] = (450nm)/[4.9] ≈ 91.8 nm = 0.0918 µm, which is within the range of 0.05 – 1.5 µm (Jang ¶0036). For completeness of the record, Desieres (US 20170005230 A1) discloses GaN having an index of refraction n=2.45 at λ=450 nm. A person of ordinary skill in the art would recognize 450nm to be blue light. Therefore, under MPEP 2112.01 Jang must have the same properties.
Regarding claim 4, Jang in view of Sano teaches: The device according to claim 1, wherein the emissive structure (Jang 120) includes a superficial upper layer (Jang 103), formed of a semiconductor material (Jang ¶0030, “semiconductor layers … 103”), and wherein the protruding parts (Jang 103a, 103b) of said grating (Jang “grooves”, 103a, 103b), formed of the same semiconductor material as said superficial upper layer (Jang ¶0032, 0056, 103 is etched to form grating), are as one piece with the upper layer of the emissive structure (Jang ¶0056-0058, fig 4C-4D, monolithically formed by etching).
Regarding claim 11, Jang in view of Sano teaches: The device according to claim 1, the device being a light-emitting diode (Jang ¶0029), wherein the emissive structure (Jang 120) comprises:
a lower layer (Jang 101, ¶0030) formed at least in part of a doped semiconductor (Jang ¶0030, “first … conductivity type semiconductor layers 101 … doped with n-type impurities”),
an upper layer (Jang 103, ¶0030) formed at least in part of a doped semiconductor (Jang ¶0030, “second conductivity type semiconductor layers … 103 … doped with … p-type impurities”), the lower and upper layers having opposite type doing (Jang ¶0030, n-type and p-type), and
an emissive part (Jang 102, ¶0030) which extends between the lower layer and the upper layer (Jang fig 1) and which is capable of emitting said luminous radiation when it has an electric current flowing therethrough (Jang ¶0030, “active layer 102 generates light by the recombination of electron-hole pairs”).
Regarding claim 15, Jang in view of Sano teaches: The device according to claim 1, wherein the antireflective structure (Jang “light extraction patterns”, 103a, 103b, “grooves” as modified by Sano to have a pitch less than λ/[2.n]) is configured to narrow an angular aperture of an emission cone of the luminous radiation in the medium above the grating (as best understood to mean “a medium above the grating”)(Jang “air” ¶0033, fig 1), relative to an emission cone of an otherwise identical optoelectronic device having a planar outlet surface without said antireflective structure (MPEP 2111.04 states that claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure. It appears that the claim language “configured to” does not limit a claim to a particular structure. In this instant case, Jang in view of Sano possesses the antireflective structure of claim 1, and no new structural limitations are presented, therefore Jang in view of Sano must be at least capable of “narrow[ing] an angular aperture of an emission cone of the luminous radiation in the medium above the grating, relative to an emission cone of an otherwise identical optoelectronic device having a planar outlet surface without said antireflective structure”; see MPEP 2112.01; see MPEP 2114).
Claims 2, 3, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Jang et al (US 20100133570 A1, hereafter Jang) in view of Sano et al (US 20100091376 A1, hereafter Sano), as applied to claim 1 above, and further in view of Herner (US 20210305464 A1, hereafter Herner).
Regarding claim 2, Jang in view of Sano teaches: The device according to claim 1.
Jang in view of Sano does not explicitly teach: wherein an area occupied by the outlet surface of the emissive structure is lower than 50 µm2.
Herner, in the same field of endeavor of semiconductor device manufacturing, teaches: a microLED (Herner 500) with an area of 25 µm2 (Herner ¶0071, lateral dimensions A1 and A2 of 5 µm results in an area of 25 µm2).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust the area of the emissive structure of Jang in view of Sano, as taught by Herner, such that “an area occupied by the outlet surface of the emissive structure is lower than 50 µm2”, in order to increase the pixel density of a device (Herner ¶0051).
Further, one of ordinary skill in the art would have been led to the recited dimensions through routine experimentation and optimization. Applicant has not disclosed that the area occupied by the outlet surface of the emissive structure is for a particular unobvious purpose, produces an unexpected result, or is otherwise critical, and it appears prima facie that the device would possess utility using another area. It has been held that mere dimensional limitations are prima facie obvious absent a disclosure that the limitations are for a particular unobvious purpose, produce an unexpected result, or are otherwise critical (MPEP 2144.04).
Regarding claim 3, Jang in view of Sano and Herner teaches: The device according to claim 2.
Jang in view of Sano and Herner does not explicitly teach: wherein the area is lower than 5 µm2.
Herner further teaches: a lateral dimension of a microLED (Herner 500) with a value less than 5 µm (Herner ¶0071, “dimensions A1 and A2 … 5 microns, or even smaller values”).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to further adjust the area of the emissive structure of Jang in view of Sano and Herner, as taught by Herner, such that “the area is lower than 5 µm2”, in order to increase the pixel density of a device (Herner ¶0051).
Further, one of ordinary skill in the art would have been led to the recited dimensions through routine experimentation and optimization. Applicant has not disclosed that the area is for a particular unobvious purpose, produces an unexpected result, or is otherwise critical, and it appears prima facie that the device would possess utility using another area. It has been held that mere dimensional limitations are prima facie obvious absent a disclosure that the limitations are for a particular unobvious purpose, produce an unexpected result, or are otherwise critical (MPEP 2144.04).
Regarding claim 12, Jang in view of Sano teaches: The optoelectronic device according to claim 1.
Jang in view of Sano does not explicitly teach: A display screen comprising an array of optoelectronic devices.
Herner, in the same field of endeavor of semiconductor device manufacturing, teaches: a display comprise and array of optoelectronic devices (Herner ¶0002, 0051).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to arrange the optoelectronic devices of Jang in view of Sano into an array as taught by Herner, and such that they form “A display screen comprising an array of optoelectronic devices each in accordance with claim 1”, in order to achieve a higher display resolution (Herner ¶0004, 0051), wherein each optoelectronic device in the array provides improved light extraction (Jang ¶0003, 0008).
Claims 5-7, 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Jang et al (US 20100133570 A1, hereafter Jang) in view of Sano et al (US 20100091376 A1, hereafter Sano), as applied to claims 1 or 4 above, and further in view of Hoshi (US 20030156325 A1, hereafter Hoshi).
Regarding claim 5, Jang in view of Sano teaches: The device according to claim 4, wherein:
the protruding parts (Jang 103a, 103b) of the grating (Jang “grooves”, 103a, 103b) are formed of a material having an optical index np (Jang ¶0032, 103 is comprised of GaN, which inherently possess a refractive index as a material property),
a medium (Jang “air”, ¶0033) of optical index nout (air inherently possess a refractive index as a material property) extends above the grating (Jang fig 1, ¶0033),
a medium (Jang “air”, ¶0033) of index nr (air inherently possess a refractive index as a material property) fills the hollow parts (Jang “grooves”) of the grating (Jang ¶0033, fig 1), and
a filling factor FF of the grating, equal to the fraction of the volume of the grating occupied by its hallow parts (Jang ¶0036, grating patterns “spaced from each other at an interval” defining a pitch; the ratio for hollow volume to total grating volume constitutes an inherent filling factor for any periodic grating structure).
Jang in view of Sano does not explicitly teach: a filling factor FF of the grating is equal to the filling factor FFTE given by the following formula F1:
F
F
T
E
∙
n
r
2
+
1
-
F
F
T
E
∙
n
p
2
=
n
.
n
o
u
t
.
Hoshi, in the same field of endeavor of semiconductor device manufacturing, teaches: a filling factor defined as FF = w/Λ (Hoshi ¶0012, 0073), and the effective medium theory for TE mode polarized light as
n
T
E
=
n
s
2
F
F
+
n
i
2
1
-
F
F
(Hoshi ¶0071-0073).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to select a filling factor FF satisfying the above formula in order to optimize optical performance of the grating (Hoshi ¶0119).
Further, absent a showing of criticality with respect to the filling factor (a result effective variable), it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust pitch (a) through routine experimentation in order to achieve improved optical performance. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. (MPEP 2144.05). Hoshi discloses that the effective refractive index is determined by the filling factor FF (Hoshi ¶0072), which itself is determined by the grating pitch and width (Hoshi ¶0073), both adjustable geometric parameters.
Regarding claim 6, Jang in view of Sano teaches: The device according to claim 1, wherein:
the protruding parts (Jang 103a, 103b) of the grating (Jang “grooves”, 103a, 103b) are formed of a material having an optical index np (Jang ¶0032, 103 is comprised of GaN, which inherently possess a refractive index as a material property),
a medium (Jang “air”, ¶0033) of optical index nout (air inherently possess a refractive index as a material property) extends above the grating (Jang fig 1, ¶0033),
a medium (Jang “air”, ¶0033) of index nr (air inherently possess a refractive index as a material property) fills the hollow parts (Jang “grooves”) of the grating (Jang ¶0033, fig 1), and
a filling factor FF of the grating, equal to the fraction of the volume of the grating occupied by its hallow parts (Jang ¶0036, grating patterns “spaced from each other at an interval” defining a pitch; the ratio for hollow volume to total grating volume constitutes an inherent filling factor for any periodic grating structure).
Jang in view of Sano does not explicitly teach: a filling factor FF of the grating is equal to the filling factor FFTE given by the following formula F1:
F
F
T
E
∙
n
r
2
+
1
-
F
F
T
E
∙
n
p
2
=
n
.
n
o
u
t
.
Hoshi, in the same field of endeavor of semiconductor device manufacturing, teaches: a filling factor defined as FF = w/Λ (Hoshi ¶0012, 0073), and the effective medium theory for TE mode polarized light as
n
T
E
=
n
s
2
F
F
+
n
i
2
1
-
F
F
(Hoshi ¶0071-0073).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to select a filling factor FF satisfying the above formula in order to optimize optical performance of the grating (Hoshi ¶0119).
Further, absent a showing of criticality with respect to the filling factor (a result effective variable), it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust pitch (a) through routine experimentation in order to achieve improved optical performance. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. (MPEP 2144.05). Hoshi discloses that the effective refractive index is determined by the filling factor FF (Hoshi ¶0072), which itself is determined by the grating pitch and width (Hoshi ¶0073), both adjustable geometric parameters.
Regarding claim 7, Jang in view of Sano and Hoshi teaches: The device according to claim 6, wherein the grating (Jang “grooves”, 103a, 103b, similar to Hoshi 31) is one-dimensional (Jang fig 1, Hoshi ¶0009, 0012, fig 39), the hollow parts (Jang “grooves”, similar to Sano 012b and Hoshi 32) being rectilinear grooves parallel to each other (Jang fig 1, Hoshi fig 39), and wherein said radiation has a substantially rectilinear polarization (Hoshi ¶0071, TE polarized light, fig 28A), and parallel to said grooves (Hoshi ¶0071, “light having a polarization component perpendicular to the periodic direction of a grating of the minute periodic structure is represented by TE polarized light”, fig 28A).
Regarding claim 9, Jang in view of Sano teaches: The device according to claim 1, wherein:
the protruding parts (Jang 103a, 103b) of the grating (Jang “grooves”, 103a, 103b) are formed of a material having an optical index np (Jang ¶0032, 103 is comprised of GaN, which inherently possess a refractive index as a material property),
a medium (Jang “air”, ¶0033) of optical index nout (air inherently possess a refractive index as a material property) extends above the grating (Jang fig 1, ¶0033),
a medium (Jang “air”, ¶0033) of index nr (air inherently possess a refractive index as a material property) fills the hollow parts (Jang “grooves”) of the grating (Jang ¶0033, fig 1), and
a filling factor FF of the grating, equal to the fraction of the volume of the grating occupied by its hallow parts (Jang ¶0036, grating patterns “spaced from each other at an interval” defining a pitch; the ratio for hollow volume to total grating volume constitutes an inherent filling factor for any periodic grating structure).
Jang in view of Sano does not explicitly teach: the grating is one-dimensional, the hollow parts being rectilinear grooves parallel to each other, and said radiation has a substantially rectilinear polarization perpendicular to said grooves, and wherein
a filling factor FF of the grating is equal to the filling factor FFTM given by the following formula F2:
F
F
T
M
∙
n
r
-
2
+
1
-
F
F
T
M
∙
n
p
-
2
-
1
=
n
.
n
o
u
t
.
Hoshi, in the same field of endeavor of semiconductor device manufacturing, teaches: a one-dimensional grating (Hoshi ¶0009, 0012, fig 39) having hollow parts (Hoshi 32) being rectilinear grooves parallel to each other (Hoshi fig 39, ¶0071), and radiation has a substantially rectilinear polarization perpendicular to said grooves (Hoshi ¶0071, TM polarized light, fig 28A), and wherein
a filling factor defined as FF = w/Λ (Hoshi ¶0012, 0073), and the effective medium theory for TM mode polarized light as
n
T
M
=
1
n
s
2
F
F
+
1
n
i
2
1
-
F
F
-
1
(Hoshi ¶0071-0073).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Jang in view of Sano such that the grating is “one-dimensional, the hollow parts being rectilinear grooves parallel to each other, and said radiation has a substantially rectilinear polarization perpendicular to said grooves”, in order to target a specific polarization (Hoshi ¶0071-0072), and to select a filling factor FF satisfying the above formula in order to optimize optical performance of the grating (Hoshi ¶0119).
Further, absent a showing of criticality with respect to the filling factor (a result effective variable), it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust pitch (a) through routine experimentation in order to achieve improved optical performance. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. (MPEP 2144.05). Hoshi discloses that the effective refractive index is determined by the filling factor FF (Hoshi ¶0072), which itself is determined by the grating pitch and width (Hoshi ¶0073), both adjustable geometric parameters.
Regarding claim 10, Jang in view of Sano teaches: The device according to claim 1, wherein the grating has a depth D (Jang “predetermined depth”, ¶0056, fig 4B), along a direction perpendicular to the outlet surface (Jang fig 4B-D); and a medium (Jang “air”, ¶0033) of optical index nout (air inherently possess a refractive index as a material property) which extends above the grating (Jang fig 1, ¶0033).
Jang in view of Sano does not explicitly teach: the depth D being equal to
λ
/
4
n
∙
n
o
u
t
, nout being the optical index of the medium (as best understood to mean “an optical index of a medium which extends above the grating”) which extends above the grating, opposite to the emissive structure.
Hoshi, in the same field of endeavor of semiconductor device manufacturing, teaches: adjusting a grating depth to be an integral multiple of
λ
/
4
(Hoshi ¶0143).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust the grating of Jang in view of Sano such that “the depth D being equal to
λ
/
4
n
∙
n
o
u
t
"
in order to obtain an antireflective effect (Hoshi ¶0139, 0143).
Further, absent a showing of criticality with respect to the depth (a result effective variable), it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust the grating depth through routine experimentation in order to achieve improved antireflective properties. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. (MPEP 2144.05).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Jang et al (US 20100133570 A1, hereafter Jang) in view of Sano et al (US 20100091376 A1, hereafter Sano) and Hoshi (US 20030156325 A1, hereafter Hoshi), as applied to claim 6 above, and further in view of Hirasawa et al (US 20170284609 A1, hereafter Hirasawa).
Regarding claim 8, Jang in view of Sano and Hoshi teaches: The device according to claim 6.
Jang in view of Sano and Hoshi does not explicitly teach: wherein the grating is a two-dimensional grating including a pattern periodically repeated along a first direction, and also periodically repeated along a second direction different from the first direction.
Hirasawa, in the same field of endeavor of semiconductor device manufacturing, teaches: a two-dimensional periodic structure (Hirasawa 120D, ¶0234) periodically repeated along a first direction (Hirasawa x dir), and also periodically repeated along a second direction (Hirasawa y dir) different from the first direction (Hirasawa fig 18A, ¶0234).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the grating of Jang in view of Sano and Hoshi, such that it comprises a two-dimensional grating, and such that it includes “a pattern periodically repeated along a first direction, and also periodically repeated along a second direction different from the first direction”, as taught by Hirasawa, in order to apply effects of the grating to both the TE and TM polarized light components (Hirasawa ¶0234, Hoshi ¶0143-0144), thereby improving light extraction efficiency.
Response to Arguments
Applicant's arguments filed 04/30/2026 have been fully considered but they are not persuasive.
Regarding claim 1, the applicant argues at page 8:
The Office Action articulates the motivation to combine Sano with Jang as a desire to optimize for incident angle characteristics, citing Sano paragraph [0048] (Office Action, page 4). However, respectfully, this motivation is meaningful only with respect to Sano's structure operating in its disclosed role.
This articulated motivation does not provide a rational basis for the proposed combination as it relates to the functional purpose recited in claim 1. The recited purpose is the opposite directional case: the antireflective structure of claim 1 is configured to reduce reflection, at the outlet surface, of the luminous radiation produced within the emissive structure, that is, of outgoing light. A skilled artisan following Sano's articulated reason in paragraph [0048] would arrive at an arrangement designed to optimize the angular response of incoming external light into a passive optical element. He/she would not arrive at the directional purpose recited in claim 1, because Sano's articulated reason does not point to it.
Here, the only motivation articulated by the Office is for a purpose different from the one claim 1 recites. There is no articulated reason in the references (and none in the Office Action) for a skilled artisan to undertake the proposed combination for the purpose recited in claim 1 as amended.
Examiners response:
The Examiner respectfully disagrees. It appears the applicant’s above argument attributes to Sano a direction purpose on which the rejection does not rely. In this instant case, Sano is relied upon to teach “a pitch smaller than the wavelength λ” to suppresses reflection at an optical interface and reduce the variation of the reflection characteristic with light having an incident angle, and that therefore it would be obvious to dimension Jang’s outlet surface with such a grating for that same reason.
The modification as proposed does not need to be the same reason nor solve the same problem as recited by the applicant. A POSITA would be motivated to adjust the grating dimensions so as to also optimize for at least a reduction of incoming external light reflection, as taught by Sano; the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Regarding claim 1, the applicant further argues at pages 8 and 9:
The Office cannot rely on a hypothetical recognition that an antireflective structure designed for incoming light is optically reciprocal to one designed for outgoing light, such that the same structure might also reduce outgoing reflection. Even if such a recognition were attributed to a skilled artisan, recitation of a functional purpose with specification support is not met by mere capability of the prior-art structure to perform that function. The functional language in claim 1 is tied to a specific design purpose disclosed in the application, and is supported by the rest of the claim's structural recitations (sub-wavelength pitch, regular periodic grating). See MPEP 2111.04 (functional language tied to a particular structure or use). The Office's burden is to show that the references disclose, teach or suggest the recited purpose with rational underpinning, not merely that the proposed combination might, as a matter of optical principle, also reduce outgoing reflection. The present record does not meet that burden.
Examiners response:
The Examiner respectfully disagrees. The rejection does not rely on optical reciprocity; the functional limitation “wherein the antireflective structure is configured to reduce reflection, at the outlet surface, of the luminous radiation produced within the emissive structure” is taught by Jang (as cited above and as conceded by the applicant “Jang already discloses a structure positioned to handle the directional scenario that claim 1 addresses” (remarks page 9), and does not distinguish the claimed device over the prior art, since it appears that this limitation can be performed by the prior-art structure of Jang in view of Sano. Claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function (see MPEP 2114; 2111.04). The claimed structure is taught by the combined references, and the applicant identifies no structural distinction over them.
Further, MPEP 2114(I) states in part: if an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possesses the functionally defined limitations of the claimed apparatus. In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40, 100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on; and MPEP 2112.01 states in part: Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.
It appears that the above rejection clearly explains that Jang in view of Sano clearly meets the structural characteristics, and further explains the prior art structure must at least possess the functionality defined by the claimed apparatus. Further, the above and previous rejection include a calculation showing that for at least blue light, with the same materials as disclosed by the applicant, the claimed formula for pitch is within a range of suitable pitches that Jang teaches (Jang ¶0036).
Regarding claim 1, the applicant further argues at page 9:
The proposed combination does not produce the structure recited in claim 1. Jang already provides a structure for the directional scenario claim 1 addresses, but for a different optical function, namely total internal reflection recovery, not reduction of Fresnel reflection at the outlet surface. Sano provides an antireflective, Fresnel-reflection-reducing function, but for the inverse directional scenario. Neither reference articulates a reason to assign Sano's antireflective function to Jang's directional scenario in the manner claim 1 recites. There is no objective reason in either reference for a skilled artisan to modify Jang's structure in view of Sano such that the resulting structure has the claimed combination of features, namely, a sub-wavelength regular periodic grating configured to reduce reflection, at the outlet surface, of the luminous radiation produced within the emissive structure. The combination of Jang and Sano therefore lacks the rational underpinning 35 U.S.C. 103 and KSR require.
Examiners response:
The Examiner respectfully disagrees, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Further, in response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Sano is relied upon to teach “a pitch smaller than the wavelength λ” to suppresses reflection at an optical interface and reduce the variation of the reflection characteristic with light having an incident angle, and that therefore it would be obvious to dimension Jang’s outlet surface with such a grating for that same reason.
Regarding claim 1, the applicant further argues at page 9:
Total internal reflection is a phenomenon distinct from Fresnel reflection at normal incidence (like in Sano). The former involves rays striking an interface at angles greater than the critical angle, which a flat high-index/low-index interface reflects entirely back into the higher- index medium. The latter involves rays striking the interface at lower angles (including normal incidence), which a flat high-index/low-index interface partially reflects back into the higher-index medium. Claim 1 as amended is directed to reducing reflection of outgoing light at the outlet surface, which is a function the application ties expressly to the index mismatch present even at normal incidence. Jang's mechanism does not address that function.
The hemispherical-topped columnar geometry Jang discloses also cannot operate as the effective-medium antireflective layer that the claimed structure provides. The application explains that the claimed grating is not a diffractive grating (application, paragraph [0022]) and should be analyzed in terms of an effective average medium below the diffraction cut-off pitch 1/(2n).
Examiners response:
The Examiner respectfully disagrees. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., reduction in Fresnel reflection, interface striking angles, high/low refractive indices, columnar geometry) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICHOLAS B. MICHAUD whose telephone number is (703)756-1796. The examiner can normally be reached Monday-Friday, 0800-1700 Eastern Time.
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/NICHOLAS B. MICHAUD/
EXAMINER
Art Unit 2818
/BRIAN TURNER/Examiner, Art Unit 2818
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