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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/508,870. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the claims of the instant application are presented as limitations in the claims of copending Application No. 18/508,870. However, in some instances these limitations are presented in a different order. This is to say, some of the limitations of the independent claims of the instant application are presented as limitations in the dependent claims of copending Application No. 18/508,870, in vice-versa. Also, some of the limitations are obvious variants. As such, an obvious type double patenting rejection is necessary.
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/506,692. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of the claims of the instant application are presented as limitations in the claims of copending Application No. 18/506,692. However, in some instances these limitations are presented in a different order. This is to say, some of the limitations of the independent claims of the instant application are presented as limitations in the dependent claims of copending Application No. 18/506,692, in vice-versa. Also, some of the limitations are obvious variants. As such, an obvious type double patenting rejection is necessary.
Note: the Examiner is aware that both applications have been allowed. However, none of them have been published yet.
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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (US. Pub: 2020/0091247 A1~ hereinafter “Lee”) in view of Joo et al. (US. Pub: 2021/0376021 A1~ hereinafter “Joo”).
Regarding claim 1, Lee discloses (in at least fig. 3) a light emitting display device, comprising: a substrate (110); a plurality of anodes (191; [0071]) located on the substrate; a pixel defining layer (361; [0063]) defining a plurality of first openings overlapping the plurality of anodes, respectively (see at least fig. 3); a plurality of light emitting layers (370R, 370G, 370B; [0076]) located within the plurality of first openings of the pixel defining layer, respectively (see fig. 3); a cathode (270; [0077]) disposed on the plurality of light emitting layers and the pixel defining layer; an encapsulation layer (300; [0050]) located on the cathode; and a plurality of color filters (410) corresponding to different colors (410R, 410G, 410B; [0081]) and located on the encapsulation layer, wherein the plurality of color filters (410R, 410G, 410B) define a plurality of second openings in each of which only one color filter of the plurality of color filters is located (see fig. 3), and include a light blocking area (see fig. 3) in which at least two color filters of the plurality of color filters are overlapped in a plan view (see fig. 3), and at least one first opening among the plurality of first openings of the pixel defining layer (361) and at least one second opening among the plurality of second openings of the color filter (410) each has a rhombus shape in the plan view ([0074]).
Lee does not expressly disclose an oval shape opening.
However, Lee discloses (in at least [0074]) “the pixel opening 365 may be formed in the shape of a rhombus on a plane, but is not limited thereto.”
Joo in the same field of endeavor discloses (in at least [0060]) an oval shape opening.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to replace the rhombus shape opening of Lee with the oval shape opening of Joo, since it has been held that simple substitution of one known shape for another to obtain predictable results is obvious.
Regarding claims 2 and 11, Lee as modified by Joo discloses (in at least figs. 2-8 Joo; [0060]) the plurality of first openings includes four or more major axes, the plurality of second openings includes four or more major axes (see at least figs. 2-8; [0060]), but is silent about an angle formed by major axes of the oval shapes of two first openings among the plurality of first openings or an angle formed by major axes of the oval shapes of two second openings of the plurality of second openings is 45 degrees or less.
However, as noted, Joo discloses (in at least [0060]) the plurality of the first openings and the plurality of the second openings comprise an oval shape.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to consider forming the angle of the major axes of the plurality of openings of Lee as modified by Joo in the range of 45 degrees or less through routine experimentation and optimization.
Also, it is understood from the prior art that the oval shape of Joo is capable of having an angle formed by major axes of the oval shapes of two first openings among the plurality of first openings or an angle formed by major axes of the oval shapes of two second openings of the plurality of second openings is 45 degrees or less.
Regarding claims 3 and 12, Lee as modified by Joo does not expressly disclose each of the plurality of first openings or each of the plurality of second openings has an eccentricity of 0.2 to 0.85.
However, as noted, Joo discloses (in at least [0060]) the plurality of the first openings and the plurality of the second openings comprise an oval shape.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to consider forming each of the plurality of first openings or each of the plurality of second openings of Lee as modified by Joo with an eccentricity of 0.2 to 0.85 through routine experimentation and optimization.
Also, it is understood from the prior art that the oval shape of Joo is capable of having each of the plurality of first openings or each of the plurality of second openings has an eccentricity of 0.2 to 0.85.
Furthermore, Applicant has not disclosed that the recited eccentricity is for a particular unobvious purpose produces unexpected results, and it appears prima facie that the process would possess utility using the openings oval shape eccentricity of Lee as modified by Joo.
Regarding claim 4, Lee as modified by Joo discloses (in at least figs. 2-8 Joo; fig. 3 Lee) the plurality of first openings and the plurality of second openings overlapping the first openings in the plan view are formed at regular intervals in the plan view (in at least figs. 2-8 Joo; fig. 3 Lee).
Regarding claims 5 and 13, Lee as modified by Joo discloses (in at least figs. 2-8 Joo; fig. 3 Lee) a first opening among the plurality of first openings and a second opening, which overlaps the first opening in the plan view (see figs. 2-8 Joo, fig. 3 Lee), but fails to disclose among the plurality of second openings have a horizontal gap of more than 0 micrometer (μm) and less than or equal to 20 μm.
However, since the overlap of the openings would affect the subsequent light pattern, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to consider forming the horizontal gap of Lee as modified by Joo more than 0 micrometer (μm) and less than or equal to 20 μm, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art.
Regarding claim 6, Lee as modified by Joo discloses (in at least figs. 2-8 Joo; fig. 3 Lee) a first opening among the plurality of first openings and a second opening, which overlaps the first opening in the plan view, among the plurality of second openings have a same major axis direction or an angle of 20 degrees or less between major axis directions thereof.
Regarding claims 7 and 14, Lee as modified by Joo does not expressly disclose that some of the first openings or the second openings have a shape that merges portions of at least two elliptical shapes with different eccentricities in the plan view.
However, as noted, Joo discloses (in at least [0060]) the plurality of the first openings and the plurality of the second openings comprise an oval shape.
It is well-known in the art to form a display device wherein some of the first openings or the second openings have a shape that merges portions of at least two elliptical shapes with different eccentricities in the plan view as evident by Chai (CN: 117202707 A) at least fig. 2.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to arrange some of the first openings or the second openings Lee as modified by Joo to have a shape that merges portions of at least two elliptical shapes with different eccentricities in the plan view as taught by Chai, since it has been held that rearranging parts of an invention involves only routine skill in the art.
Regarding claims 8 and 15, Lee as modified by Joo and Chai discloses (in at least fig. 2 Chai) the some of the first openings or the second openings have a planar shape formed by cutting a first ellipse with a first eccentricity and a second ellipse with a second eccentricity in a first direction and then merging a cut portion of the first ellipse and a cut portion of the second ellipse.
Also, the limitation “the some of the first openings or the second openings have a planar shape formed by cutting a first ellipse with a first eccentricity and a second ellipse with a second eccentricity in a first direction and then merging a cut portion of the first ellipse and a cut portion of the second ellipse” is a product by process limitation. “[E]ven 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.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Regarding claims 9 and 16, Lee as modified by Joo discloses (in at least fig. 3 Lee) in the light blocking area of the color filter (410), a blue color filter (410B) and a red color filter (410R) overlap each other, each of the plurality of second openings overlaps one of the blue color filter, the red color filter, and a green color filter (see fig. 3).
Regarding claim 10, Lee discloses (in at least fig. 3) a light emitting display device, comprising: a substrate (110); a plurality of anodes (191) located on the substrate; a pixel defining layer (361) defining a plurality of first openings overlapping the plurality of anodes, respectively (see at least fig. 3); a plurality of light emitting layers (370R, 370G, 370B) located within the plurality of first openings of the pixel defining layer, respectively; a cathode (270) disposed on the plurality of light emitting layers and the pixel defining layer (see fig. 3); an encapsulation layer (300) located on the cathode; and a plurality of color filters (410R, 410G, 410B) corresponding to different colors and located on the encapsulation layer, wherein the plurality of color filters (410R, 410G, 410B) define a plurality of second openings in each of which only one color filter of the plurality of color filters is located, and include a light blocking area in which at least two color filters of the plurality of color filters are overlapped in a plan view (see at least fig. 3).
Lee does not expressly disclose one of a first opening of the pixel defining layer among the plurality of first openings and a second opening of the color filter overlapping the first opening, among the second openings, has a circular shape, and the other of the first opening and the second opening has an oval shape in the plan view.
However, Lee discloses (in at least [0074]) “the pixel opening 365 may be formed in the shape of a rhombus on a plane, but is not limited thereto.”
Joo in the same field of endeavor discloses (in at least [0060]) one of a first opening of the pixel defining layer among the plurality of first openings and a second opening of the color filter overlapping the first opening, among the second openings, has a circular shape, and the other of the first opening and the second opening has an oval shape in the plan view.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to replace the rhombus shape opening of Lee with both the circular and oval shape openings of Joo, since it has been held that simple substitution of one known shape for another to obtain predictable results is obvious. See also Chai (CN: 117202707 A) at least fig. 2.
Regarding claim 17, Lee as modified by Joo and Chai discloses (in at least figs. 2, 13 and 14 Chai) the first opening has the circular shape, and the second opening has the oval shape, and borders of the first opening and the second opening are in contact with each other in the plan view.
Regarding claim 18, Lee as modified by Joo and Chai discloses (in at least figs. 2, 13 and 14 Chai) the first opening has the circular shape, and the second opening has the oval shape, and the first opening is located within the second opening in the plan view.
Regarding claim 19, Lee as modified by Joo and Chai discloses (in at least figs. 2, 13 and 14 Chai) the first opening has the circular shape, and the second opening has the oval shape, and a portion of the first opening overlaps the second opening, and a remaining portion of the first opening overlaps the light blocking area of the color filter in the plan view.
Regarding claim 20, Lee as modified by Joo and Chai discloses (in at least figs. 2, 13 and 14 Chai) the first opening has the oval shape, and the second opening has the circular shape.
Conclusion
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ELMITO BREVAL
Primary Examiner
Art Unit 2875
/ELMITO BREVAL/Primary Examiner, Art Unit 2875
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