DETAILED ACTION
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 2/18/24 is in compliance with the provisions of 37 CFR 1.97 and 1.98. Accordingly, the information disclosure statement has been considered by the examiner.
Specification
The abstract of the disclosure is objected to because it exceeds the 150 word limit. Correction is required. See MPEP § 608.
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.
Claim(s) 5, 10, 16, 20, and 23 is/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.
Claims 5 and 16 recite the limitation “wherein the composition graded electron blocking layer comprises an aluminum (Al) composition graded from approximately 95% to approximately 75%.”
The metes and bounds of the claimed limitation can not be determined for the following reasons: The term "approximately" is a relative term that renders the claim indefinite. It is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The term “approximately” defines targets (75%; 95%) and implicitly requires boundaries different than the targets beyond which one is not “approximately” the target any more. Neither the claims, nor the specification, defines the boundaries. For example, it is unclear which values, such as 40%, 45%, 50%, 55%, 60%, 62%, 65%, 68%, 70%, 73%, 74%, 74.5%, are “approximately 75%”, and which are too far from 75% to be “approximately 75%”. Thus, determining whether one is infringing the limitation is subjective, rather than objective, and the claim is unclear.
Claim 10 recites the limitation “wherein the LED comprises a nearly invariant carrier lifetime over an excitation range of 0.1 to 3000 W/cm2”.
The metes and bounds of the claimed limitation can not be determined for the following reasons: The term "nearly" is a relative term that renders the claim indefinite. It is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The term “nearly” defines a target (“invariant carrier lifetime”) and implicitly requires boundaries different than the target beyond which one is not “nearly” the target any more. Neither the claims, nor the specification, defines the boundaries. For example, it is unclear how much the lifetime may vary and still be “nearly invariant”. Thus, determining whether one is infringing the limitation is subjective, rather than objective, and the claim is unclear.
Claim 20 recites the limitation “wherein the light comprises a peak in the EL spectrum in a wavelength range of approximately 210-259 nm”.
The metes and bounds of the claimed limitation can not be determined for the following reasons: The term "approximately" is a relative term that renders the claim indefinite. It is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The term “approximately” defines targets (either the entire range of 210-259 nm, or the endpoints of the range, namely 210 nm and 259 nm) and implicitly requires boundaries different than the targets beyond which one is not “approximately” the target any more. Neither the claims, nor the specification, defines the boundaries. For example, it is unclear which values, such as 150, 160, 170, 180, 190, 200, 205, 208, 260, 263, 265, 270, 280, 290, 300, 310, 320, 330, 340, 350, 375, 400, 450, 500, etc. are “approximately 210-259 nm”, and which are too far away to be “approximately 210-259 nm”. Thus, determining whether one is infringing the limitation is subjective, rather than objective, and the claim is unclear.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 20 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 20 requires the limitation “wherein the light comprises a peak in the EL spectrum in a wavelength range of approximately 210-259 nm” but depends from claim 19, which requires the limitation “wherein the LED is operable for emitting light at a peak in the electroluminescence (EL) spectrum less than 250 nm.” Thus, claim 20 does not further limit claim 19, because it broadens the range required by claim 19 over the range of 250-259 nm.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Interpretation
The applicant is hereby notified that the examiner is treating claims 6 and 23 as "product-by-process” claims. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” (See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985), and also see MPEP 2113).
The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. (See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979) and also see MPEP 2113).
Claims 6 and 23 recite the limitation “wherein the composition graded electron blocking layer is polarization engineered”, which is the result of a process limitation “polarization engineering”. The limitation does not result in any distinctive structural characteristics, because it does not even require the “engineering” to result in a “polarization”. It does not rule out the consideration of polarization in the design/engineering process and the decision to not polarize the layer.
Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. (See In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983)).
Also note the use of 102/103 rejections for product-by-process claims has been approved by the courts. (See In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972), and also see MPEP 2113).
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102, some of which 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.
Claim(s) 1-7 and 11-24 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by US 2013/0277642 A1 (“Kneissl”).
Kneissl teaches, for example:
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Kneissl teaches:
1. A light emitting diode (LED) (see e.g. Fig. 1) comprising: a composition graded (see e.g. para 13, 17, 21, 23, 29, etc.) electron blocking layer (comprising e.g. the “tunnel injector”, also referred to as “injection layer”, which blocks electrons, see e.g. para 8; and/or “electron blocking layer” denoted as “EBL”, see e.g. para 20; and possibly the superlattice, see e.g. para 24, 27, 28, 30-32); wherein the LED is operable for emitting light (see e.g. para 12, 18, etc.).
2. The LED of Claim 1, wherein the composition graded electron blocking layer comprises aluminum gallium nitride (AlGaN) (see e.g. para 21, 23, 33, 34).
3. The LED of Claim 1, wherein the composition graded electron blocking layer comprises magnesium (Mg) doping (see e.g. para 21, 23, 33, 34).
4. The LED of Claim 1, wherein the composition graded electron blocking layer comprises Mg doped AlGaN (see e.g. para 21, 23, 33, 34).
5. The LED of Claim 1, wherein the composition graded electron blocking layer comprises an aluminum (Al) composition graded from approximately 95% to approximately 75% (see e.g. para 21).
6. The LED of Claim 1, wherein the composition graded electron blocking layer is polarization engineered (see claim interpretation section, above).
7. The LED of Claim 1, wherein the light comprises a peak in the electroluminescence (EL) spectrum less than 250 nanometers (nm) (see e.g. para 21).
11. A light emitting diode (LED) heterostructure, comprising: a quantum well layer (see e.g. para 23, 37); an electron blocking layer (see e.g. para 13, 17, 21, 23, 29, etc.) electron blocking layer (comprising e.g. the “tunnel injector”, also referred to as “injection layer”, which blocks electrons, see e.g. para 8; and/or “electron blocking layer” denoted as “EBL”, see e.g. para 20; and possibly the superlattice, see e.g. para 24, 27, 28, 30-32); and a tunnel junction (see e.g. para 21, 37, 38); wherein the LED heterostructure is operable for emitting light (see e.g. para 12, 18, etc).
12. The LED heterostructure of Claim 11, wherein the electron blocking layer comprises composition grading (see e.g. para 13, 17, 21, 23, etc.).
13. The LED heterostructure of Claim 11, wherein the electron blocking layer comprises aluminum gallium nitride (AlGaN) (see e.g. para 21, 23, 33, 34).
14. The LED heterostructure of Claim 11, wherein the electron blocking layer comprises magnesium (Mg) doping (see e.g. para 21, 23, 33, 34).
15. The LED heterostructure of Claim 11, wherein the electron blocking layer comprises Mg doped AlGaN (see e.g. para 21, 23, 33, 34).
16. The LED heterostructure of Claim 11, wherein the electron blocking layer comprises an aluminum (Al) composition graded from approximately 95% to approximately 75% (see e.g. para 21).
17. The LED heterostructure of Claim 11, wherein the light comprises a peak in the electroluminescence (EL) spectrum less than 250 nanometers (nm) (see e.g. para 21).
18. The LED heterostructure of Claim 11, wherein the tunnel junction comprises a gallium nitride (GaN) layer (see e.g. para 31).
19. A light emitting diode (LED) comprising: an electron blocking layer (comprising e.g. the “tunnel injector”, also referred to as “injection layer”, which blocks electrons, see e.g. para 8; and/or “electron blocking layer” denoted as “EBL”, see e.g. para 20; and possibly the superlattice, see e.g. para 24, 27, 28, 30-32); and a tunnel junction layer (see e.g. para 21, 37, 38); wherein the LED is operable for emitting light (see e.g. para 12, 18, etc.) at a peak in the electroluminescence (EL) spectrum less than 250 nm (see e.g. para 21).
20. The LED of Claim 19, wherein the light comprises a peak in the EL spectrum in a wavelength range of approximately 210-259 nm (see e.g. para 21).
21. The LED of Claim 19, wherein the electron blocking layer comprises magnesium (Mg) doping (see e.g. para 21, 23, 33, 34).
22. The LED of Claim 19, wherein the electron blocking layer comprises composition grading (see e.g. para 13, 17, 21, 23, etc.).
23. The LED of Claim 19, wherein the electron blocking layer is polarization engineered (see claim interpretation section, above).
24. The LED of Claim 19, wherein the electron blocking layer comprises AlGaN (see e.g. para 21, 23, 33, 34).
Claim Rejections - 35 USC § 103
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 of this title, 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.
Claim(s) 8 and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kneissl in view of US 2013/0313516 A1 (“David”) and “Tunnel Junction-based Ultra-violet Light Emitting Diodes” dissertation by Yuewei Zhang (see reference provided by Applicant and listed on the 2/18/24 IDS, hereinafter “Zhang”).
Kneissl teaches claims 7 and 19, as discussed above, but does not explicitly teach wherein the LED comprises an external quantum efficiency (EQE) of at least 0.3% at a current density of at least 0.25 A/cm2.
However, this is merely a property of LEDs that is well known to test at the claimed current densities (see David, e.g. Fig. 38C), and the claimed percentages that result are commensurate with findings in other LEDs (see David, e.g. Fig. 38C; see Zhang, wherein 3.7 EQE is found in AlGaN-based LEDs). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the invention of David and/or Zhang to the invention of Kneissl. The motivation to do so is that the combination produces the predictable results of utilizing known tests to aid the optimization of various materials, thicknesses, etc., in order to achieve desired LED properties.
Furthermore, given the teachings of David and Zhang, one of ordinary skill in the art would have found it obvious that the structures in Kneissl would have resulted in the claimed EQE, because the disclosed structure matches the claimed structure, and thus the properties of the disclosed structure must match the claimed properties.
“[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112(I).
Claim(s) 9 and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kneissl in view of US 2015/0315462 A1 (“Murphy”).
Kneissl teaches claims 7 and 19, as discussed above, but does not explicitly teach wherein the LED comprises a wall-plug efficiency (WPE) of at least 0.2% at a current density of at least 0.25 A/cm2.
However, this is merely a property of LEDs that is well known to test at the claimed current densities (see Murphy, e.g. para 48), and the claimed percentages that result are commensurate with findings in other LEDs (see Murphy, e.g. para 48). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the invention of Murphy to the invention of Kneissl. The motivation to do so is that the combination produces the predictable results of utilizing known tests to aid the optimization of various materials, thicknesses, etc., in order to achieve desired LED properties.
Furthermore, given the teachings of Murphy, one of ordinary skill in the art would have found it obvious that the structures in Kneissl would have resulted in the claimed WPE, because the disclosed structure matches the claimed structure, and thus the properties of the disclosed structure must match the claimed properties.
“[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112(I).
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kneissl in view of US 2016/0365480 A1 (“Mi”).
Kneissl teaches claim 7, as discussed above, but does not explicitly teach wherein the LED comprises a nearly invariant carrier lifetime over an excitation range of 0.1 to 3000 W/cm2.
However, this is merely a property of LEDs that is well known to test at the claimed current densities and the claimed percentages that result are commensurate with findings in other LEDs (see Mi, e.g. para 92, fig. 2B, etc.). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add the invention of Mi to the invention of Kneissl. The motivation to do so is that the combination produces the predictable results of utilizing known tests to aid the optimization of various materials, thicknesses, etc., in order to achieve desired LED properties.
Furthermore, given the teachings of Mi, one of ordinary skill in the art would have found it obvious that the structures in Kneissl would have resulted in the claimed nearly invariant carrier lifetime, because the disclosed structure matches the claimed structure, and thus the properties of the disclosed structure must match the claimed properties.
“[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112(I).
Conclusion
Conclusion / Prior Art
The prior art made of record, because it is considered pertinent to applicant's disclosure, but which is not relied upon specifically in the rejections above, is listed on the Notice of References Cited.
Conclusion / Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kevin Parendo who can be contacted by phone at (571) 270-5030 or by direct fax at (571) 270-6030. The examiner can normally be reached Monday-Friday from 9 am to 4 pm ET.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Billy Kraig, can be reached at (571) 272-8660. The fax number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Kevin Parendo/Primary Examiner, Art Unit 2896
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