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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4-7, 12, 17, and 18 are 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 Claims 4 and 5, the language “when the current density of the light-emitting diode is greater than 10 A/cm2, the thickness of the first spacer layer ranges from 50 nm to 120 nm” is either conditional language (not required) or functional language; however it is unclear what specific structure accomplishes the stated function. The Examiner notes a vice of functional claiming occurs "when the inventor is painstaking when he recites what has already been seen, and then uses conveniently functional language at the exact point of novelty") (quoting General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 371 (1938)); see also United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 234 (1942). In the present case, any specific structure required to make a device that can perform the claimed function, outside of that already claimed, is not specifically identified by the Applicant, and therefore the use of functional language in the claims fails "to provide a clear-cut indication of the scope of the subject matter embraced by the claim" and is thus indefinite. In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). See MPEP §2173.05(g). For purposes of compact prosecution, the Examiner will interpret the language as being met if all previously established structural features are present in the prior art. Claim 5 is rejected based on its dependent status from Claim 4. Additionally, the Examiner notes the conditional/functional language makes it seem that a single device can vary the thickness of the spacer layer once it is in use and the current density has been identified, which is confusing as written as that is not likely the case with this device.
Regarding Claims 6 and 7, the language “the current density of the light-emitting diode is less than or equal to 10 A/cm2, and the thickness of the first spacer layer ranges from 0 nm to 50 nm” is either conditional language (not required) or functional language; however it is unclear what specific structure accomplishes the stated function. The Examiner notes a vice of functional claiming occurs "when the inventor is painstaking when he recites what has already been seen, and then uses conveniently functional language at the exact point of novelty") (quoting General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 371 (1938)); see also United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 234 (1942). In the present case, any specific structure required to make a device that can perform the claimed function, outside of that already claimed, is not specifically identified by the Applicant, and therefore the use of functional language in the claims fails "to provide a clear-cut indication of the scope of the subject matter embraced by the claim" and is thus indefinite. In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). See MPEP §2173.05(g). For purposes of compact prosecution, the Examiner will interpret the language as being met if all previously established structural features are present in the prior art. Claim 7 is rejected based on its dependent status from Claim 6. Additionally, the Examiner notes the conditional/functional language makes it seem that a single device can vary the thickness of the spacer layer once it is in use and the current density has been identified, which is confusing as written as that is not likely the case with this device.
Regarding Claims 12-14, the language “when the length of the second side is greater than 100 μm, a thickness of the first spacer layer ranges from 50 nm to 120 nm, or when the length of the second side is less than or equal to 100 μm, the thickness of the first spacer layer ranges from 0 nm to 50 nm” is either conditional language (not required) or functional language; however it is unclear what specific structure accomplishes the stated function. The Examiner notes a vice of functional claiming occurs "when the inventor is painstaking when he recites what has already been seen, and then uses conveniently functional language at the exact point of novelty") (quoting General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 371 (1938)); see also United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 234 (1942). In the present case, any specific structure required to make a device that can perform the claimed function, outside of that already claimed, is not specifically identified by the Applicant, and therefore the use of functional language in the claims fails "to provide a clear-cut indication of the scope of the subject matter embraced by the claim" and is thus indefinite. In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). See MPEP §2173.05(g). For purposes of compact prosecution, the Examiner will interpret the language as being met if all previously established structural features are present in the prior art. Claims 13-14 are rejected based on its dependent status from Claim 12. Additionally, the Examiner notes the conditional/functional language makes it seem that a single device can vary the thickness of the spacer layer once it is in use and the current density has been identified, which is confusing as written as that is not likely the case with this device.
Regarding Claim 17, the language “when the current density of the light-emitting diode is greater than 10 A/cm2, the thickness of the first spacer layer ranges from 50 nm to 120 nm” is either conditional language (not required) or functional language; however it is unclear what specific structure accomplishes the stated function. The Examiner notes a vice of functional claiming occurs "when the inventor is painstaking when he recites what has already been seen, and then uses conveniently functional language at the exact point of novelty") (quoting General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 371 (1938)); see also United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 234 (1942). In the present case, any specific structure required to make a device that can perform the claimed function, outside of that already claimed, is not specifically identified by the Applicant, and therefore the use of functional language in the claims fails "to provide a clear-cut indication of the scope of the subject matter embraced by the claim" and is thus indefinite. In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). See MPEP §2173.05(g). For purposes of compact prosecution, the Examiner will interpret the language as being met if all previously established structural features are present in the prior art. Additionally, the Examiner notes the conditional/functional language makes it seem that a single device can vary the thickness of the spacer layer once it is in use and the current density has been identified, which is confusing as written as that is not likely the case with this device.
Regarding Claim 18, the language “when the current density of the light-emitting diode is less than or equal to 10 A/cm2, the thickness of the first spacer layer ranges from 0 nm to 50 nm” is either conditional language (not required) or functional language; however it is unclear what specific structure accomplishes the stated function. The Examiner notes a vice of functional claiming occurs "when the inventor is painstaking when he recites what has already been seen, and then uses conveniently functional language at the exact point of novelty") (quoting General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 371 (1938)); see also United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 234 (1942). In the present case, any specific structure required to make a device that can perform the claimed function, outside of that already claimed, is not specifically identified by the Applicant, and therefore the use of functional language in the claims fails "to provide a clear-cut indication of the scope of the subject matter embraced by the claim" and is thus indefinite. In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). See MPEP §2173.05(g). For purposes of compact prosecution, the Examiner will interpret the language as being met if all previously established structural features are present in the prior art. Additionally, the Examiner notes the conditional/functional language makes it seem that a single device can vary the thickness of the spacer layer once it is in use and the current density has been identified, which is confusing as written as that is not likely the case with this device.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-7, 9, 10-12, 14-18, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kneissl et al. (US Patent Application Publication No. 2005/0224781) (“Kneissl”).
Regarding Claim 1, Kneissl teaches a light-emitting diode, comprising: a semiconductor epitaxial stack (see Figure 1) having a first surface and a second surface opposite to each other and comprising a first-type semiconductor layer (Figure 9, item 150), an active layer (Figure 9, item 173+179+175+181+177), and a second-type semiconductor layer (Figure 9, item 190) stacked in sequence in a direction from the first surface to the second surface, the active layer comprising n periods of quantum well structure (see Figure 9), and each period of quantum well structure comprising a well layer and a barrier layer deposited sequentially (see Figure 9, items 173+179+175+181+177); wherein a first spacer layer (Figure 9, item 160) is disposed between the first-type semiconductor layer and the active layer, and a ratio of a thickness (nm) of the first spacer layer to a current density (A/cm2) of the light-emitting diode ranges from 0 to 10 (see Figure 10).
Regarding Claim 2, Kneissl further teaches the ratio of the thickness (nm) of the first spacer layer to the current density (A/cm2) of the light-emitting diode ranges from 0 to 5 (see Figure 10).
Regarding Claim 3, Kneissl further teaches the thickness of the first spacer layer ranges from 0 nm to 120 nm (see Figure 10 and ¶0048).
Regarding Claim 4 in so far as definitely and as provisionally interpreted by the Examiner above, Kneissl further teaches when the current density of the light-emitting diode is greater than 10 A/cm2, the thickness of the first spacer layer ranges from 50 nm to 120 nm (see Figure 10).
Regarding Claim 5, in so far as definitely and as provisionally interpreted by the Examiner above, Kneissl further teaches a length of at least one side of the light-emitting diode is greater than 100 μm (¶0074).
Regarding Claim 6 in so far as definitely and as provisionally interpreted by the Examiner above, Kneissl further teaches when the current density of the light-emitting diode is less than or equal to 10 A/cm2, and the thickness of the first spacer layer ranges from 0 nm to 50 nm (see Figure 10).
Regarding Claim 7, in so far as definitely and as provisionally interpreted by the Examiner above, Kneissl further teaches a length of at least one side of the light-emitting diode is greater than 100 μm (¶0074).
Regarding Claim 9, Kneissl further teaches a doping of the first spacer layer is n-type doping, and a concentration of the n-type doping is less than 2E17/cm3 (¶0048).
Regarding Claim 10, Kneissl further teaches the light-emitting diode further comprises a second spacer layer (Figure 9, item 180), and the second spacer layer is located between the active layer and the second-type semiconductor layer (see Figure 9).
Regarding Claim 12, in so far as definitely and as provisionally interpreted by the Examiner above, Kneissl teaches a light-emitting diode (Figure 1), comprising: a semiconductor epitaxial stack (see Figure 1) having a first surface and a second surface opposite to each other and comprising a first-type semiconductor layer (Figure 9, item 150), an active layer (Figure 9, item 173+179+175+181+177), and a second-type semiconductor layer (Figure 9, item 190) stacked in sequence in a direction from the first surface to the second surface, the active layer comprising n periods of quantum well structure (see Figure 9), and each period of quantum well structure comprising a well layer and a barrier layer deposited sequentially (see Figure 9, items 173+179+175+181+177); wherein a first spacer layer (Figure 9, item 160) is disposed between the first-type semiconductor layer and the active layer; wherein the light-emitting diode has a first side, a second side, a third side, and a fourth side surrounding in turn, wherein the first side is parallel to the third side, the second side is parallel to the fourth side, a length of the first side is greater than or equal to a length of the second side, and when the length of the second side is greater than 100 μm (¶0074), a thickness of the first spacer layer ranges from 50 nm to 120 nm, or when the length of the second side is less than or equal to 100 μm (¶0074), the thickness of the first spacer layer ranges from 0 nm to 50 nm (¶0048).
Regarding Claim 14, Kneissl further teaches a doping of the first spacer layer is n-type doping, and a concentration of the n-type doping is less than 2E17/cm3 (¶0048).
Regarding Claim 15, Kneissl teaches a light-emitting device, comprising a drive unit and a light-emitting diode (see Figure 11 which shows light emission from the LED of Kneissl, thus the LED has been connected electrically to a drive unit), wherein the drive unit is electrically connected to the light-emitting diode having a first surface and a second surface opposite to each other and comprising a first-type semiconductor layer (Figure 9, item 150), an active layer (Figure 9, item 173+179+175+181+177), and a second-type semiconductor layer (Figure 9, item 190) stacked in sequence in a direction from the first surface to the second surface, the active layer comprising n periods of quantum well structure (see Figure 9), and each period of quantum well structure comprising a well layer and a barrier layer deposited sequentially (see Figure 9, items 173+179+175+181+177); wherein a first spacer layer (Figure 9, item 160) is disposed between the first-type semiconductor layer and the active layer, and a ratio of a thickness (nm) of the first spacer layer to a current density (A/cm2) of the light-emitting diode ranges from 0 to 10 (see Figure 10).
R Regarding Claim 16, Kneissl further teaches the ratio of the thickness (nm) of the first spacer layer to the current density (A/cm2) of the light-emitting diode ranges from 0 to 5 (see Figure 10).
Regarding Claim 17, Kneissl further teaches the thickness of the first spacer layer ranges from 0 nm to 120 nm (see Figure 10 and ¶0048).
Regarding Claim 18, Kneissl further teaches when the current density of the light-emitting diode is less than or equal to 10 A/cm2, the thickness of the first spacer layer ranges from 0 nm to 50 nm (¶0048).
Regarding Claim 20, Kneissl further teaches a doping of the first spacer layer is n-type doping, and a concentration of the n-type doping is less than 2E17/cm3 (¶0048).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 8 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Kneissl as applied to Claim 1 above, and further in view of Takeuchi et al. (US Patent Application Publication No. 2008/0212631) (“Takeuchi”).
Regarding Claim 8, Kneissl teaches Claim 1 as indicated above. Kneissl does not specifically teach a material of the first spacer layer is AlaGa1-aInP, wherein a ranges from 0.2 to 1. However, Takeuichi teaches using AlaGa1-aInP as a spacer layer between a multi quantum well and a cladding layer (see Figure 1) for red light emission (¶0004-0010). It would have been obvious to a person having ordinary skill in the art at the time of effective filing to use the material of Takeuichi in the device of Kneissl as it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960). MPEP § 2144.07.
Regarding Claim 11, Kneissl teaches Claim 1 as indicated above. Kneissl does not specifically teach a material of the second spacer layer is AlbGa1-bInP, wherein b ranges from 0.2 to 1. However, Takeuichi teaches using AlbGa1-bInP as a spacer layer between a multi quantum well and a cladding layer (see Figure 1) for red light emission (¶0004-0010). It would have been obvious to a person having ordinary skill in the art at the time of effective filing to use the material of Takeuichi in the device of Kneissl as it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960). MPEP § 2144.07.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Kneissl as applied to Claim 12 above, and further in view of Takeuchi et al. (US Patent Application Publication No. 2008/0212631) (“Takeuchi”).
Regarding Claim 13, Kneissl teaches Claim 12 as indicated above. Kneissl does not specifically teach a material of the first spacer layer is AlaGa1-aInP, wherein a ranges from 0.2 to 1. However, Takeuichi teaches using AlaGa1-aInP as a spacer layer between a multi quantum well and a cladding layer (see Figure 1) for red light emission (¶0004-0010). It would have been obvious to a person having ordinary skill in the art at the time of effective filing to use the material of Takeuichi in the device of Kneissl as it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960). MPEP § 2144.07.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Kneissl as applied to Claim 15 above, and further in view of Takeuchi et al. (US Patent Application Publication No. 2008/0212631) (“Takeuchi”).
Regarding Claim 19, Kneissl teaches Claim 15 as indicated above. Kneissl does not specifically teach a material of the first spacer layer is AlaGa1-aInP, wherein a ranges from 0.2 to 1. However, Takeuichi teaches using AlaGa1-aInP as a spacer layer between a multi quantum well and a cladding layer (see Figure 1) for red light emission (¶0004-0010). It would have been obvious to a person having ordinary skill in the art at the time of effective filing to use the material of Takeuichi in the device of Kneissl as it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960). MPEP § 2144.07.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARK W TORNOW whose telephone number is (571)270-7534. The examiner can normally be reached M-Th 6:30-4:30 EST.
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MARK W. TORNOW
Primary Examiner
Art Unit 2891
/MARK W TORNOW/Primary Examiner, Art Unit 2891