Shining a Light on Obviousness

In re Cree (Fed. Cir. 2016)[1]

In a straightforward decision, the Federal Circuit has affirmed the PTAB’s decision that Cree’s claimed down-shifted LED invention would have been obvious in light of a combination of three prior art patents.[2]  The basic problem with LED lighting is that it is easy and cheap (these days) to get blue light, but harder to produce light across the spectrum – especially reds.  Cree’s patented approach used a blue LED that is wrapped in a “down-converting luminophoric medium.”  The basic idea is that the blue light energy is absorbed by the medium and then released as white light.  These Fluorescent and phosphorescent materials were already known and commercially available.

The Federal Circuit decision affirming the Board is a demonstration of flexibility of the contemporary obviousness doctrine.  With each of Cree’s attempts to poke holes in the Board’s decision, the Federal Circuit offers an annealing response that make Cree’s arguments seem weak.

Particular holdings:

  1. The PTAB did not err by adopting the patent examiner’s findings rather than writing its own. “There is no force to that argument. It is commonplace in administrative law for a reviewing body within an agency to adopt a fact-finding body’s findings.”
  2. The PTAB’s statements of items “known” in the art did not require a single prior art reference disclosing that knowing. “In context, it is clear that the Board was not using the word ‘known’ to mean ‘disclosed in a single reference.’ Instead, the Board’s statement that down-conversion was a known approach for creating white light from an LED is best understood to mean that persons of skill in the art were aware that down-conversion could be used to make white light out of blue light, regardless of the source of the light.”
  3. A rational, non-hindsight reason for combining the references comes from the references themselves since the later reference offered a brighter LED that could be combined with the earlier to produce higher quality light. “The availability of the high-powered Nakamura LED thus provided the motivation to combine Stevenson’s use of LEDs to create primary colors with Pinnow’s use of a short-wavelength light source to create white light. . . . [Cree’s] accompanying ‘impermissible hindsight’ is essentially a repackaging of the argument that there was insufficient evidence of a motivation to combine the references.”
  4. Cree’s secondary considerations were insufficient to outweigh strong evidence of obviousness. “[S]elfserving statements from researchers about their own work do not have [much] reliability.” Regarding licensing, “Cree … provided press releases evidencing that it … entered into licensing transactions, but [did] not shown that the licenses were based on the merits of the ’175 patent.”  Further, commercial success of a product only operates as a secondary consideration of nonobviousness if coupled with a nexus between that success and the claimed features of the patent.

= = = = = =

[1] This case is on appeal from the Patent Trial & Appeal Board’s ruling in ex parte reexamination No. 90/010,940.

[2] The referenced prior art includes U.S. Patent No. 3,691,482 (“Pinnow”), U.S. Patent No. 3,819,974 (“Stevenson”), and U.S. Patent No. 5,578,839 (“Nakamura”).

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

92 thoughts on “Shining a Light on Obviousness

  1. Yeah this decision is probably wrong. There’s almost a 100% chance that this is wrong.

    They’re trying to a. bring in a totally new device from the 2ndary ref into the primary ref and b. further modify the now created hybrid construction with new phosphors.

    For a. long shot much? that’s arse backwards generally speaking, you modify your device you have, not change the whole device you have while leaving behind the modifications thereto, and we’re talking about a mere ordinary skilled artisan here, not super genioos Nakamura putting forth all his intellectual ability. But even so, even granted arguendo a is the case b still creates a big problem.

    For b, first of all, one of mere ordinary skill will rather rarely take the leap to modifying an already modified device, much less a “backwards modified” device like the hybrid that was created in the first combination of the primary and secondary refs. And by rather rarely I mean practically never. Add in that the tertiary reference is substantially different in context and that’s just not going to happen for a mere ordinary skilled person.

    This court is granting the mere ordinary skilled imaginary man super human inventing powers.

    1. It would have been like a million times easier to invent that thing from scratch (like Cree apparently did) than to piece it together arse backwards from those three references. No ordinary skilled man, imaginary or not, would have even had a chance. The way cree did it is believable, in the realm of human ability. The way the board is proposing this thing would be come up with by an imaginary man is borderline absurd.

    2. This court is granting the mere ordinary skilled imaginary man super human inventing powers.

      LOL – sort of like trying to capture all future improvements to an [Old Box] as if all of those future manufactures are somehow “already in there”….

    3. I disagree but haven’t read the reexam yet.

      From Nakamura, you can get near-UV emission from an LED.

      From Stevenson, light from an LED can be down-shifted using phosphors to create different colors (and there is light in the near-UV, see Fig. 4 of Stevenson). I think this can be read as a general teaching that phosphors can be added to LEDs in order to produce light of the desired wavelength(s).

      As a side note, I incorrectly noted earlier that 2.86 was near-UV. It’s not; the cutoff is ~3eV or greater. Botched that calculation. Stevens only goes up to 2.98 eV.

      From Pinnow, you get that different phosphors can be combined in order to create white light from UV excitation.

      Although I might have suggested US4176299, which discloses that different phosphors can be used to create white light from an ultraviolet source, although in the context of fluorescent lights.

      I don’t think a teaching that creating *white light* *from an LED* is necessary here once it is known that you can add phosphors to LEDs in order to downshift light.

      1. Yes, but the way they “built” the combo in the rejection is backwards, and trying to build it “forwards” is unpossible due to the structure of the structures being combined (when I say “backwards” I mean they changed the primary by changing the entire main device from the primary into a new device). They did it “backwards” like this because they had to. And doing it “backwards” is always a long shot for one of ordinary skill, on even a 2 ref combo. This thing hits the “backwards” wall in the very first combo (of the two combos required). And then you have to go on and make another combo on top of that. Yeah, not happening irl.

        All you have, at best, is a big jumble of the parts that need to go together somehow, but the putting them all together correctly from those old refs is never going to happen with a mere ordinary skilled artisan rollin on that project. KSR counsels strongly against a finding of obviousness here. Common sense is strongly strongly against it.

        What you’re thinking about patentcat, is “what if” we could make the combo in proper forwards fashion (which we cannot) and then it might, might be obvious.

        You, patentcat, are taking Nakamura essentially “first” as would be proper, as the “primary” ref that we’re gong to modify. But that isn’t how the actual rejection goes. In the rejection of record, Stevenson is the primary that is going to be modified and they took the device in Nakamura and just jammed it into the overall structure of Stevenson “backwards”. And they had to do that because Nakamura cannot be modified forwards-like into a good rejection with Nakamura as the primary.

        “can be combined in order to create white light from UV excitation.”

        “Can be” is a leap from “go on and do it bro, you know, in that arse backwards combo you just came up with”.

        Remember, you have to leave this thing “in the middle of the road” obvious, not “oh an imaginary man could have possibly come up with it”.

        “I don’t think a teaching that creating *white light* *from an LED* is necessary here”

        It is because you need to bring those actual phosphors in from the tertiary (Pinnow) into the overall combination to even have the device.

        1. 6, it was known that phosphors emitted white light on receiving blue. It was also known that the intensity of the emitted light was far less.

          The evidence here showed that once high powered gallium nitride LEDs became available, the combination of phosphors with the LED became practicable.

          That let only the method of doing the combination open to invention. There are details in the claims not addressed by the Court. I wonder if there was invention there.

          1. “The evidence here showed that once high powered gallium nitride LEDs became available, the combination of phosphors with the LED became practicable.”

            Nobody takes issue with that, as a “general concept”. What I take issue with is that the actual combo in the rejection is absurd to ascribe to a mere ordinary skilled man (even the first step of the overall 2 step combo is borderline absurd itself as I’d mentioned one does not typically replace your actual device in the primary and leave the accoutrements to that device behind to make a combo because one of ordinary skill would rarely if ever do such). Remember Ned, the actual combination of references needs to somewhat be obvious. Not just the “general concepts”. We’re not combining “general concepts”, and that is because the board is saying in the actual rejection, that they propose an actual combination of the irl devices in the manner that they set forth. That’s because the ordinary imaginary man only has what is available in the prior art to work with, he doesn’t just combine broad sweeping “concepts”.

            “That let only the method of doing the combination open to invention.”

            I’m not sure what you mean here, perhaps you’re saying you more or less agree with me?

            ” There are details in the claims not addressed by the Court. ”

            That’s yet another issue, that the teachings of the tertiary ref are too generalized and not specific enough, but I was going on the presumption that the court was addressing those other specifics (the stuff about the wavelengths etc.) indirectly when they were talking about a semi-broad range of wavelengths in the opinion.

            1. Well, 6, there was no simple substitution but a reconstruction. The Federal Circuit treated the claim as no more than using conventional down-converting phosphors with blue LEDs substituted for blue lasers. But the claim actually requires structure in terms of the putting the phosphors into a polymer and then mounting the polymer on the LED. The Federal Circuit did not discuss these limitations as if they were not even claimed. I wonder if the board discussed them or whether they were even discussed by the applicant.

              1. The Federal Circuit did not discuss these limitations as if they were not even claimed

                That “Gist/Abstract” sword habit gets rather difficult to break….

                1. It is definitely not Reasonable to “Gist” away “limitations as if they were not even claimed

                2. You do not get to call it “just bri” when there is NO “r” there.

                  You do know what the “r” stand for, right?

              2. “But the claim actually requires structure in terms of the putting the phosphors into a polymer and then mounting the polymer on the LED.”

                Indeed, but they’re probably BRI’ing those limitations “out” so that a sheet of material held up in front of the device “counts” as the polymer.

                ” I wonder if the board discussed them or whether they were even discussed by the applicant.”

                I’m sure they were addressed somewhere in the 100 page Answer that the board incorporated by reference lol.

                Idk the more I think about this the more I lay the whole travesty at the bad lawyering style/court posture of Cree. I don’t know what is the matter with them, but I just see bad “arguments” and “responses” coming out of them all the time, but they’re one of the most innovative firms around.

                1. Again, the word “Reasonable” has to be…

                  ..

                  .

                  wait for it

                  ..

                  .

                  reasonable.

                  (hint: BRI’ing those limitations “out” cannot be reasonable)

                2. This one is pretty reasonable, anon.

                  I hate BUI, but I don’t think this is one of those cases that uses it.

              3. From Pinnow:

                “Specific wavelengths within this broad range are chosen in accordance with the phosphor characteristics. Suitable phosphors are discussed at some length in the Detailed Description. Generally speaking, suitable materials are organic dyes or pigments many of which are commercially available and in widespread use.

                In this description, use will be made of the term colorant or organic colorant. It is to be understood that this term includes photoluminescent organic dyes and pigments. Pigments are particularly useful and may be formed by dissolving a dye in an organic resin solution which is subsequently condensed. It is known that luminescent efficiency in certain cases may be enhanced if the dye is absorbed on a colloid which may take the form of gell fibers or particles of high molecular weight polymers.”

                Dyes can be the phosphors, putting the dyes in a polymer enhances luminescent efficiency.

                Not saying it’s not important, but there you go, TSM for putting the phosphors in a polymer.

        2. Ok, don’t think doing the other way isn’t proper either.

          Stevenson discloses an LED with phosphors used to change the color. But Stevenson uses i-GaN because he can’t make p-type GaN, which is explicit in the reference.

          Nakamura discloses a way of making a more efficient GaN LED. You’d want to use the more efficient light source.

          Sure this changes the peak of emission some, but I think those arguments are spurious.

          Finally, while Stevenson teaches phosphors can be used, doesn’t teach a mixture of phosphors to make white light.

          Use of phosphors to create white light is simple substitution for Stevenson’s phosphors. But motivation to create white LED is well known, as examiner noted.

          1. “Stevenson discloses an LED with phosphors used to change the color. But Stevenson uses i-GaN because he can’t make p-type GaN, which is explicit in the reference.”

            That’s because stevenson was a loser from a million years ago and his overall device structure is teh sux. Note that the Nakamura device isn’t going in the overall structure of Stevenson anytime soon, if for no other reason than the wiring/contacts to the actual device in Stevenson are wrong for the Nakamura device (which requires wiring for the contacts that are both on the same, upper side, of the device). There’s like a million and one problems with doing this first step to the combo, but I shouldn’t get off on a tangent here.

            “Nakamura discloses a way of making a more efficient GaN LED.”

            True.

            “You’d want to use the more efficient light source.”

            True but doesn’t matter because the Nakamura LED isn’t going in the super old sux structure of Stevenson anytime soon as the board just presumes/asserts (lol “finds?”) that it would. But, even granting them that as a gift we’re only halfway home and bordering on the absurd already. To even get here you have to essentially be combining “concepts” as in taking the broad concept of the device in Stephenson as opposed to the actual device in Stephenson for use in the rejection, though they explicitly said that they weren’t. They explicitly said they want to do a simple substitution of the Nakamura device into the Stevenson device. Horse hockey. That isn’t a simple substitution because Nakamura wasn’t made for Stephenson’s old ar se sux structure. You have to modify the contacts/wiring at least, and maybe even flip the LED chip upside down in the Stevenson structure for the thing to even get power considering where the underside contact is in Stevenson.

            “Sure this changes the peak of emission some, but I think those arguments are spurious.”

            The peak emissions? It changes the entire “guts” of stevenson. Set the “peak emissions” aside my good brosef, that’s the least of your worries. You’ve messed up the contacts/wiring, and you’re making a laser beam out of a primary ref that was a mere light emitting diode device. This is because we need it to be a laser to bring in the tertiary, which is a ref that has phosphors that work on likely collimated laser light, you can’t leave the newly combined device stephenson/nakamura as an LED, but even if you do leave it an LED in the first step of the combo that’s just one small issue among many.

            “Finally, while Stevenson teaches phosphors can be used, doesn’t teach a mixture of phosphors to make white light.”

            Yeah but his “teaching” on this account is super duper broad and generic. Barely anything :/ And bringing in the tertiary of record is just horrible, and even arguably exceeds what a fair BRI interpretation of “about” means in the claim ivo the spec. The claim is not talking about putting a sheet of phosphors somewhere out front of the overall light emitting structure when it says “about”, it literally means put the medium that is in a polymer “about” the single die, as in “around it” like is shown in the patent.

            But set all that complicated technical stuff aside and its just improbable in the extreme that one of ordinary skill in the art, having those three refs in front of him on his imaginary desk would just all of a sudden spontaneously exclaim to do what is claimed (i.e. that it would be obvious to him). That’s like literally absurd. Could he maybe piece together something that arguably fits within a super broad construction? Yes, but only through considerable very inventive work.

            1. “Cree’s quarrels with the Board’s analysis of the motivation to combine are without merit. Cree argues that because a laser generates more output power than an LED, a person of ordinary skill would fail to appreciate that Pinnow’s teachings on down-conversion would be applicable to LEDs as well. However, the examiner pointed to ample evidence that Pinnow’s teachings are applicable to LEDs. In a portion of the examiner’s answer adopted by the Board, the examiner explained that “the phosphors’ ability to convert the UV-to-blue light is predicated
              only on whether or not it can absorb a given wavelength of light, not on which kind of light source a particular wavelength of light is emitted, laser, LED, or otherwise, as a [person of ordinary skill in the art] would readily appreciate.” In other words, a phosphor does not care how an incident photon of light at a particular wavelength was generated.”

              Yeah I just noticed that this part in the decision is where the court goes off the rails a bit. Cree was quite correct right there in their “argument” which is more of a “statement of fact” than an “argument”. Maybe if Cree hadn’t used fancy language in making this “argument” and just come right out and said “nobody knows, even to this day, whether the phosphors in Pinnow would even make white light from a mere LED light source, all we know from this evidence is that the phosphors would make white light from a laser”. And since the board left the substitution at making the combined device of stephenson/Nakamura as an LED (rather than a laser) then we don’t even know if the specific phosphors in Pinnow would even make white light.

              1. 6, whose burden is it to show that the old phosphors would work with LEDs in addition to lasers. Where I thought the prior art said the reason for the effect was the blue light, not its power or coherence.

                1. “6, whose burden is it to show that the old phosphors would work with LEDs in addition to lasers.”

                  The mo fin’ office’s. Thus why Cree cried “burden shifting”. But Cree’s attorneys have a super bad habit that I’ve seen irl, where they use overly flowery language instead of just speaking plainly “hey court, yo we hear you like for the office to carry their evidenciary burden before we have to rebut whatever nonsense comes out they mouths, here they didn’t provide any evidence to back their “explanation” and we’d like to call them on their lack of evidence because we don’t even think what they said is factual”.

                  I mean look, this kind of “tee hee no evidence!” prosecution may cut it bureaucratically on first action where they can just amend a tiny bit and get an allowance, but jes us, in a review after issue? Craziness.

                2. “Where I thought the prior art said the reason for the effect was the blue light, not its power or coherence.”

                  From the ref:
                  ” The phosphor, when excited by a LASER BEAM of appropriate wavelength, emits a broad band of yellowish coloration which, in a preferred embodiment, combines with reflected laser light to produce an apparent black and white image.”

                  and

                  “LASER radiation reflected when this argon-ion laser radiation is use, for example. Hence, the overall effect is to produce a whiter appearance to the eye.”

                  and

                  “A black and white display can be achieved by scanning a monochromatic LASER beam on a viewing screen that is coated with an appropriate blend of phosphors and direct scattering materials such as powdered MgO or talc.”

                  Ur findings o fact are not exactly stellar. There is no assurance that the sheet would work that well with an LED. It might, mayyyyybe, but that just introduces uncertainty into the obviousness analysis.

                  The phosphor engineering for your given device is not trivial, people do it to this day. But the court acts like “weee expertise from the 30’s!” Just because something was possible doesn’t mean it was obvious. And even so, I’m not convinced you’d want to use a sheet like in this particular tertiary anyway. That’s like a poor-man’s embodiment specifically for lasers of high power from the 70’s, nobody, imaginary or otherwise, would actively want to make that in the 90’s much less for an LED.

                  And all that is on top of the problems of bringing the secondary into the primary.

                3. Just because something was possible doesn’t mean it was obvious.

                  Who exactly is this new 6….?

                1. Brosefus, there’s a difference between “an argument” and “noting a fact” which happens to be inconvenient for the office.

                2. and “noting a fact” which happens to be inconvenient for the office.

                  Replace “the office” with Malcolm and the Echoes and you have summed up Patently-O.

                3. “And since the board left the substitution at making the combined device of stephenson/Nakamura as an LED (rather than a laser) then we don’t even know if the specific phosphors in Pinnow would even make white light.”

                  No, this just shows no understanding of chemistry and/or physics.

                4. “No, this just shows no understanding of chemistry and/or physics.”

                  Lulz. I “understand” everything about this case much better than you do my good brosefus. I could have had this nonsensical rejection rescinded at the examiner level way before the board even got hold of it.

                5. “Lulz. I “understand” everything about this case much better than you do my good brosefus.”

                  I admit, you may understand things such as findings of facts, obviousness better.

                  But your understanding of the field/art is a not up to snuff.

            2. The structure is literally a holder, chip (sub + active layers), and wires. Replacing the chips in the holder is trivial. Don’t buy your argument at all. There is nothing absurd about this.

              Peak emissions doesn’t change guts at all.

              It’s not “making it into a laser” at all either. There is no way this functions as a laser.

              You don’t need it to be a laser fire tertiary either. That’s a bad argument.

              You’re treating a phosita as st00pid. Nothing is hard/difficult about this rejection.

              1. “and wires”

                And what looks like a big blob of indium as the lower side contact. Don’t leave out the important part bro.

                “Replacing the chips in the holder is trivial.”

                And yet, not shown in any art of record, and certainly no quaternary applied reference and most certainly not obvious. Even presuming there was art showing such a feat, there is no motivation/reasoning to switch all those contacts around to accomodate Namakura’s device, and there never will be. If we’re discussing what it would be obvious to do, an imaginary man would simply use the correct holder for the Nakamura device instead of using the super ancient holder in the primary. Point is, if the office wants to make the rejection they gonna have to make a more complicated rejection than what they have put down, at best. Can’t just skip parts of the combination you don’t want to deal with by declaring them trivial.

                “Don’t buy your argument at all. ”

                It’s not an argument bro, it’s a statement of fact, that you apparently just granted me is a fact, and then dismissed by calling it a “trivial” matter. It isn’t trivial (<also a statement of fact about the legalities at issue), and had someone brought it to the court's attention we wouldn't even be having this convo. But Cree's attorney's sux balls at speaking plainly, preferring flowery jak -of speech instead. Bottom line, Nakamura's device is not going into the holder of the primary ref. Not now, in 1973, or whenever or ever. And it certainly isn't happening in a "simple substitution" like the office said. The primary is just too old school to hold a new school Nakamura device. If you want to put Nakamura in a holder then you design your own or use the ones from the art that are made for Nakamura type devices (although whoopsie, those pieces of art won't mention the other thing(s) about conversion of light you need).

                "Peak emissions doesn’t change guts at all."

                I didn't say peak emissions changes the guts at all. I said putting a whole new LED device in for the LED in the primary changes the guts entirely. And you've now confirmed that we'll also need to change the wiring/contacts also further changing the guts.

                "It’s not “making it into a laser” at all either. There is no way this functions as a laser."

                Ok, you're leaving it as an LED. (note nakamura's device can be made as a LED or a laser, so I thought the board was trying to put a laser embodiment into the primary ref from Nakamura but I was mistaken, they used the LED embodiment). But leaving it an LED makes it even less likely that the little sheet in the tertiary will even work to make white light. Indeed, it may not even function at all. The light source in the tertiary is a high power laser, not an LED, and the examiner's handwaving doesn't make that combo assured to work.

                "You don’t need it to be a laser fire tertiary either"

                Then pick a new tertiary ref, or let the office pick a new tertiary ref. If they had a good/better one I presume they'd have used it. But they didn't, because such probably didn't exist in the dino times of 1996.

                "You’re treating a phosita as st00pid. "

                That's because the posita here is, literally, found as a fact to be the jack-as 3-4 years out of school sitting right down the hallway from you. He's not going to make this combo in a thousand years from these three refs. He is not Nakamura.

                1. Can’t just skip parts of the combination you don’t want to deal with by declaring them trivial.

                  Again – substitute Malcolm and the Echoes….

                2. “And what looks like a big blob of indium as the lower side contact. Don’t leave out the important part bro.”

                  Yes, indium is a very low melting point metal that can serve as both a contact (analogous to the p-contact of Nakamura) and the solder (i.e. material used to join wires to contacts).

                  “And yet, not shown in any art of record, and certainly no quaternary applied reference and most certainly not obvious. Even presuming there was art showing such a feat, there is no motivation/reasoning to switch all those contacts around to accomodate Namakura’s device, and there never will be. If we’re discussing what it would be obvious to do, an imaginary man would simply use the correct holder for the Nakamura device instead of using the super ancient holder in the primary. Point is, if the office wants to make the rejection they gonna have to make a more complicated rejection than what they have put down, at best. Can’t just skip parts of the combination you don’t want to deal with by declaring them trivial.”

                  It’s a holder. It holds the LED. Both LEDs are made on sapphire substrates.

                  Switching the contacts? Come on. For a light-emitting diode you need to connect both contacts to pass current through the device. This IS trivial and common sense and should go without saying. Obviously, if you replace the device, this entails setting up the contacts. Not rocket science.

                  “It’s not an argument bro, it’s a statement of fact, that you apparently just granted me is a fact, and then dismissed by calling it a “trivial” matter. It isn’t trivial (<also a statement of fact about the legalities at issue), and had someone brought it to the court's attention we wouldn't even be having this convo. But Cree's attorney's sux balls at speaking plainly, preferring flowery jak -of speech instead. Bottom line, Nakamura's device is not going into the holder of the primary ref. Not now, in 1973, or whenever or ever. And it certainly isn't happening in a "simple substitution" like the office said. The primary is just too old school to hold a new school Nakamura device. If you want to put Nakamura in a holder then you design your own or use the ones from the art that are made for Nakamura type devices (although whoopsie, those pieces of art won't mention the other thing(s) about conversion of light you need)."

                  It's a spurious argument. No matter how plain you make the language, it's spurious.

                  Just like your holder argument.

                  "That's because the posita here is, literally, found as a fact to be the jack-as 3-4 years out of school sitting right down the hallway from you. He's not going to make this combo in a thousand years from these three refs. He is not Nakamura."

                  This isn't Nobel-prize level difficulty here. It's something anyone with an understanding of solid-state physics/materials science would understand.

              2. “Nothing is hard/difficult about this rejection.”

                No, nothing was hard about speaking out their arse and making the rejection (though note their answer was 100 pages long apparently, because they were bsing it all). What was hard was doing the fcking inventing in 1996. And no, it probably wasn’t super super hard to invent for the geniuses at Cree, but that doesn’t mean it was obvious based on these three refs.

                1. No, nothing was hard about speaking out their arse

                  You are on a roll describing Malcolm and the Echoes…

                2. “Yes, indium is a very low melting point metal that can serve as both a contact (analogous to the p-contact of Nakamura) and the solder (i.e. material used to join wires to contacts).”

                  Mhmmm, and that backside/underside indium isn’t going to reach the front side p-contact of Nakamura if he goes in right side up, and likely will not make contact to the sapphire if you try it that way. And if you put Nakamura in upside down it may well be a “topside emitter” thus you have it emitting down into the holder which isn’t, hilariously, even necessarily all that reflective, thus making your combo device even more sux than the original primary ref left unmolested by your combo even with the high-powered Nakamura device in. And even if we presume that Nakamura emits everywhere, or is a backside emitter and is put in upside down, there is no assurance that the indium will make a good contact to the p material of Nakamura or even adhere to it (based on this record and a quick trip on the interbuts confirms it isn’t that common even today). Because at that point you’re making contact with the p-type material, not the i material. So now you get to have fun engineering/inventing yourself a contact scheme in addition to all the rest of your previous tomfoolery.

                  “Obviously, if you replace the device, this entails setting up the contacts.”

                  Well at least you’re admitting that you need to do it. But you gotta show those changed contacts in the references. Can’t just make it happen magically. The device may literally not even turn on, or certainly wouldn’t be as amazeballs of a device. Indeed, there is a substantial probability it wouldn’t with you at the helm.

                  “It’s a spurious argument”

                  You keep using that phrase but you obviously don’t know what “spurious argument” means. Search your feelings, then discard them and use the interbuts luke.

                  “This isn’t Nobel-prize level difficulty here. ”

                  Brosef, you have to make a finding of fact about who the imaginary man is when you’re doing a 103. I just made it for you. I assure you that it is a fact. Now go ahead, use that fact in re-making the determination. Instead of having Nakamura looking at the references, or someone who is an expert like you or me, use instead the 3-4 years as-hat sitting down the hall from you. Then look me in the eye and tell me he is supposed to come up with this invention, like as in spontaneously, upon glancing over these 3 references and pondering them a bit. You think there is a snowflake’s chance in he ll? Consider, he can’t f up the contacts, he can’t f up the phosphors. Gotta all be obvious, perfectly in the middle of the road. The 3-4 years out of school man being able to read/understand those 3 refs or the patent at issue doesn’t mean he’s going to put all the refs together (and change the wiring lol and near surely have to change the phosphors too) to make this invention just as if it were “laying in the middle of the road”.

                  Preposterous.

                  “It’s something anyone with an understanding of solid-state physics/materials science would understand.”

                  Understanding doesn’t make obviousness bro. Not even close. Understanding encompasses sht that is wayyyyyy off to the side of the road of technological progress. When we talk obviousness we’re looking for what is in the middle, the middle I say, of the road. Not off in the ditch. Not off in the forest. Not off-center in the road. In the middle of the road.

                3. “Mhmmm, and that backside/underside indium isn’t going to reach the front side p-contact of Nakamura if he goes in right side up, and likely will not make contact to the sapphire if you try it that way.”
                  “Well at least you’re admitting that you need to do it. But you gotta show those changed contacts in the references. Can’t just make it happen magically. The device may literally not even turn on, or certainly wouldn’t be as amazeballs of a device. Indeed, there is a substantial probability it wouldn’t with you at the helm.”

                  So you’re suggesting you need an additional ref for something that everyone would know and understand is common sense? That is, rearranging the solder so that you won’t get a short in your device?

                  “And if you put Nakamura in upside down it may well be a “topside emitter” thus you have it emitting down into the holder which isn’t, hilariously, even necessarily all that reflective, thus making your combo device even more sux than the original primary ref left unmolested by your combo even with the high-powered Nakamura device in.”

                  This I can kind of respect. Nakamura makes no mention of what type of emitter it is (in actuality, light is emitted in both directions simultaneously, and what type of emitter it is is dependent on packaging/setup). If I had to guess, it would be through the substrate, with the contact (most likely metal, but, ref is silent to this) acting as a reflector. In Stevenson, In probably acts as reflector as well.

                  “And even if we presume that Nakamura emits everywhere, or is a backside emitter and is put in upside down, there is no assurance that the indium will make a good contact to the p material of Nakamura or even adhere to it (based on this record and a quick trip on the interbuts confirms it isn’t that common even today). Because at that point you’re making contact with the p-type material, not the i material. So now you get to have fun engineering/inventing yourself a contact scheme in addition to all the rest of your previous tomfoolery.”

                  It has Ohmic contacts 26 and 24. Do you not understand that if you already have ohmic contacts, then you’re going to be able to make a good connection with your solder?

                  “Brosef, you have to make a finding of fact about who the imaginary man is when you’re doing a 103. I just made it for you. I assure you that it is a fact. Now go ahead, use that fact in re-making the determination. Instead of having Nakamura looking at the references, or someone who is an expert like you or me, use instead the 3-4 years as-hat sitting down the hall from you. Then look me in the eye and tell me he is supposed to come up with this invention, like as in spontaneously, upon glancing over these 3 references and pondering them a bit. You think there is a snowflake’s chance in he ll? Consider, he can’t f up the contacts, he can’t f up the phosphors. Gotta all be obvious, perfectly in the middle of the road. The 3-4 years out of school man being able to read/understand those 3 refs or the patent at issue doesn’t mean he’s going to put all the refs together (and change the wiring lol and near surely have to change the phosphors too) to make this invention just as if it were “laying in the middle of the road”.”

                  I believe PHOSITA level of knowledge is field dependent, right? In this field, I think a PHOSITA would have at least a MS, probably a doctorate. Because you’re not going to be working in this field without some sort of advanced degree.

                  “Understanding doesn’t make obviousness bro. Not even close. Understanding encompasses sht that is wayyyyyy off to the side of the road of technological progress. When we talk obviousness we’re looking for what is in the middle, the middle I say, of the road. Not off in the ditch. Not off in the forest. Not off-center in the road. In the middle of the road.”

                  No, but understanding means a PHOSITA can say “phosphors can create white light from blue light” instead of “phosphors can create white light from BLUE LASER LIGHT”. Even the “as-hat” down the hall would know this.

                  What field are you in, btw?

                4. “The device may literally not even turn on, or certainly wouldn’t be as amazeballs of a device. Indeed, there is a substantial probability it wouldn’t with you at the helm.”

                  And drop the personal insults. You’re the one with little to no understanding of even the basics of this field, which you’ve made abundantly clear in your responses.

                  I think part of your problem is you’re assuming the PHOSITA has your level of understanding – i.e. not very much.

                5. “So you’re suggesting you need an additional ref for something that everyone would know and understand is common sense? ”

                  Gotta do something bro. Or take official notice and see what happens.

                  “That is, rearranging the solder so that you won’t get a short in your device?””

                  I’m not sure where you want to “rearrange” it to, but even that needs a ref, or else you can take your chances with caselaw. Gl on either.

                  “In Stevenson, In probably acts as reflector as well.”

                  In is a pis poor reflector bro. It’s only in Stevenson’s ancient device as a contact to the i-GaN. Remember, stevenson is ancient and sux and his device is a backside (i.e. the top of Stevenson) emitter. In is also a pis poor soldering solution for a “high-efficiency/power” device like Nakamura. Pb is where it is at bro. Presuming Nakamura is using the standard Ni/Au p-contact (which he might not be because he is so old) then you want Pb. Stevenson wanted In so he could make straight contact to the i-GaN.

                  link to webelements.com

                  “If I had to guess, it would be through the substrate, with the contact (most likely metal, but, ref is silent to this) acting as a reflector.”

                  I would guess that as well, but we don’t really know, so that’s item #100 that the 3-4 yr down the hall is uncertain about in finding this “sooooo” obvious (where all this uncertainty, by itself, blows up the 103) But, presuming that then the substrate and any buffer layers are lowering the efficiency of this supposed “high-efficiency/power” amazeballs device. Which seems like a stretch, so it’s probably a top side emitter. You know, since they say it’s amazeballs. Which, again, blows up the 103 or at best creates uncertainty.

                  “It has Ohmic contacts 26 and 24. Do you not understand that if you already have ohmic contacts, then you’re going to be able to make a good connection with your solder?”

                  That’s not a matter of “understanding” that’s a matter of uncertainty. It’s not a given bro. Just because you have a solder there doesn’t mean it will magically make a “good connection” (need ohmic behavior, and adherence etc.) to the mystery p-contacts in Nakamura, and of course most combos of materials are not that amazing, and remember that any f ups here make the Nakamura device worse, thus taking away your motivation to bring the Nakamura device in in the first place. And obviously without rearranging it, as you’ve noted, you’ll maybe make a short and blow up the device. Or maybe contact just won’t happen. In any event, we can say with certainty that it is no longer a “simple substitution” and thus the office’s decision could well have been tossed.

                  “No, but understanding means a PHOSITA can say “phosphors can create white light from blue light” instead of “phosphors can create white light from BLUE LASER LIGHT”. ”

                  That more general finding of fact lacks substantial evidence on this record and esp from the tertiary by its lonesome. Reason is, it’ll be different phosphors for different sources of light, and as of the filing date we’re not assured that anyone has yet assembled, or even invented, the phosphors req’d for LEDs (that is to say they’re as yet un-invented and are not “old” yet, esp not in a polymer). Remember, this is 1996. But even presuming that general fact, you need more than a “general concept” you need an actual material to bring in, and besides there’s a billion other things I’ve already gone over.

                  “In this field, I think a PHOSITA would have at least a MS, probably a doctorate. Because you’re not going to be working in this field without some sort of advanced degree.”

                  You “think” while I have made a finding of fact and have mounds of substantial evidence. Humor me and presume my finding of fact is fact and then rerun your determination. I’ll wait.

                  And look, this is about the final thing I have to say on the matter, I’m not going to go around and around with you. You’re obviously convinced that sticking whatever LED into whatever holder with whatever connection scheme and whatever light conversion scheme is da ezness and is tots the obs to every imaginary awesomesauce ordinary man. Why they do it every sunday twice on tues! It appears to be hard to convince you that the rejection is sht that would barely pass review in a first OA. So, if you like, rerun your analysis after humoring me on the fact above, and have your final say on anything else.

                6. Yeah, I guess Cr isn’t a good reflector either, since it’s not in the table!

                  Dude, In is a decent reflector.

                  W/e it won’t let me post. Something is upsetting it.

                7. Fine, “decent”, but it doesn’t much matter. “Decent” doesn’t do it for the combo to be obvious. You’re going to shine your big pim p device on a mere “decent” reflector to make this a better device? Nah bro. Especially not if we shrink the In down to the size of a contact.

            3. Also, the “device structure” being the semiconductor device. The entirety of which is replaced. Holder and wires and solder (In) aren’t “outdated” or “teh sux” or whatever you want to call it. They’re conventional items for mounting devices in packages.

              1. And NOT what makes Stevenson’s device outdated.

                What’s outdated is the SEMICONDUCTOR DEVICE STRUCTURE, i.e. layers 12-14 on the substrate.

                1. Both his connection scheme and his layers and his arrangement in the cup are very outdated and were in the 90s, nobody wants to use those old school things for the latest and greatest Nakamura device in the 1990s. Least of all the hip, cool, dude 3-4 years out of school.

                  “They’re conventional items”

                  The arrangement of the stuff in Stevenson is not “the convention” bro. It’s just one of a thousand old arrangements, and his device suxed (just like all the devices around his time did).

            4. To put things in perspective, it’s like you’re suggesting that because Stevenson’s semiconductor structure is bad, everything else (a holder, wires, solder) is bad and you shouldn’t use it.

              Hopefully what I’m saying makes sense now?

              1. I know what you’re saying, but it isn’t true in reality. His connection scheme is definitely the sux, (direct In connection to the backside? lulzers bad! a big blob of In? lulzers bad!) and so is his generic not necessarily reflective cup (which they didn’t need a reflective cup back then because they simply pointed the device out the front of the cup like he kindly showed you in his Figures). There’s probably a couple other things that are the sux also, but hey, he’s from like the 70’s, so he was state of the art at the time. Plus, his device was probably never even meant for production, it looks more like a lab setup showing off his new stack of layers.

  2. Just FYI –

    The claim in question was not to a blue light LED and phosphor:

    1. A light emitting device, comprising:
    at least one single-die semiconductor light-emitting diode (LED) coupleable with a power supply to emit a primary radiation which is the same for each single-die semiconductor LED present in the device, said primary radiation being a relatively shorter wavelength radiation outside the visible white light spectrum; and
    a down-converting luminophoric medium arranged in receiving relationship to said primary radiation, and which in exposure to said primary radiation responsively emits radiation at a multiplicity of wavelengths and in the visible white light spectrum, with said radiation of said multiplicity of wavelengths mixing to produce a white light output.

    1. And the priority day is March of 1996, a time when the only way to get a white LED was to purchase a device with 3 LEDs in one package (red, blue and green), involving 4 to 6 leads…

      1. I think it would’ve helped to have something like this in the claim:

        “wherein the LED and the medium are arranged so that output of the LED passes though the medium and the while light output of the light emitting device passes through an outside portion* of the light emitting device” (where * means there should be a better word to describe an outside part of the light “bulb” if that’s what they were trying to claim).

        I mean the main reference was shooting a high powered laser off of a screen.

        However, as with all of these cases, you really need to review all the arguments, the references, and the like in great detail. I haven’t had time to do that to make up my own mind as to whether the CAFC is or is not correct.

        1. 1. There was a demand for white LEDs.
          2. The only thing those of ordinary skill had come up with to provide a “white” LED, was a three die arrangement (Red, Green and Blue).
          3. Therefore it clearly was not obvious to those of ordinary skill to use an ultraviolet LED (I’m not even sure those existed) in combination with a phosphor to achieve a white LED.

          1. This is false. Use of phosphorescent materials with LEDs goes back to the late 80s. Look over nakamuras patents. It’s explicitly detailing the use of phosphorescent materials with UV and blue LEDs.

              1. Well, when you figure out what patent you want me to look at, let me know.

                Please note that in the claimed device the primary radiation is a relatively shorter wavelength radiation outside the visible white light spectrum.

                1. You have to understand the technology to get it.

                  Nakamura invented near UV pn GaN led, for which he got the Nobel. First efficient near UV LED.

                  It’s known to use phosphors to turn near UV into white light. See us 3819974, last paragraph.

                2. 2, maybe. I read using different phosphors on same device to mean on single chip. Could be wrong.

                  I guess in that case, Pinnow may be necessary.

    2. Down converter is a phosphor. LED is a near UV led.

      What are you missing exactly?

      You’re also completely wrong about rgb.

        1. Yes, you are. This is not your area of expertise. It is, however, mine.

          You have to understand the technology to get it.

          Nakamura invented near UV pn GaN led, for which he got the Nobel. First efficient near UV LED.

          It’s known to use phosphors to turn near UV into white light. See us 3819974, last paragraph. All primary colors equals white light.

          Those two would have made a better 103. Latter might be a 102.

          1. Ha didn’t realize Stevenson was cited.

            Also, not prior art, but Sato “full color fluorescent display devices using a near UV” is good read.

          2. “You have to understand the technology to get it.”

            By this you seem to admit that it isn’t disclosed in the prior art, but if you bring additional information that you now have and read the document in hindsight…..

            1. No, like knowing GaN emits in near UV, and that phosphors are down converters.

              And that Nakamura made efficient gan pn junctions possible, but this is just more context and not necessary for understanding the rejection.

              1. “No, like knowing GaN emits in near UV, and that phosphors are down converters.”

                First of all, I am/was aware of that. What I am not aware of is that GaN LEDs emit exclusively in the UV and that therefore any discussion of GaN LEDs is a discussion of UV LEDs.

                So, assuming that one can make a blue or green LED using GaN, I again assert that UV LED/phosphor is not disclosed and you are interpreting the document in impermissible hindsight.

              2. …and by the way, the Wiki seems to jive with MY recollection that GaN LEDs became available in the 90’s:

                “Gallium nitride (GaN) is a binary III/V direct bandgap semiconductor commonly used in bright light-emitting diodes since the 1990s.”

                link to en.wikipedia.org

                And indicates that the produce-able wavelenghts are not restricted to the UV:

                “GaN-based violet laser diodes are used to read Blu-ray Discs. When doped with a suitable transition metal such as manganese, GaN is a promising spintronics material (magnetic semiconductors). The mixture of GaN with In (InGaN) or Al (AlGaN) with a band gap dependent on ratio of In or Al to GaN allows the manufacture of light-emitting diodes (LEDs) with colors that can go from red to ultra-violet.”

                1. GaN band gap varies with In and Al incorporation. Yes. But that’s not GaN itself.

                  GaN itself is in UV. The red shift in Stevenson to ~405 nm might be Mg states to conduction band recombination, or valence band to empty donor states in intrinsic material.

                  Efficient gan, yes, the 90s, with developments of Nakamura. But Stevenson teaches GaN and his is from early 80s.

    3. Les, the claims at issue were all added during reexam. Claim 118 was representative:

      A light-emission device, comprising a single-die,
      two-lead gallium nitride based semiconductor blue
      light-emitting diode emitting radiation; and a recipient
      down-converting luminophoric medium for
      down-converting the radiation emitted by the
      light-emitting diode, to a polychromatic white
      light, wherein the luminophoric medium is dispersed
      in a polymer that is on or about the single die, two lead gallium nitride based semiconductor
      blue light-emitting diode.

      There was absolutely no discussion about “dispersed in a polymer that is on or about the single die.”

      The conclusion of the Feds was that it was the invention of the gallium nitride based semiconductor LEDs with their high power that made down conversion, a known technique, practicable. Apparently the reason that down conversion was not used before was was because the down conversion process itself somewhat dimmed the amount of light available. That is why the prior art did not use prior LEDs in combination with down conversion phosphors, but rather use a combination of different color LEDs.

      I think the feds were right this far, that it was the invention of the gallium nitride LED that made the use of down conversion phosphors possible. But what I do not understand is why the court ignored the limitations about the requirement to disperse the phosphors in a polymer and locate the “film” on the LED itself. The prior art apparently projected the light onto a surface where the reflected light was the desired white. The claim seems to require that the LED light go through the film as opposed to being reflected from a film. I may be mistaken in this conclusion. Further I do not know whether that such a structure is an innovation or not.

      1. Because Ned, once you go over to the dark side (“obviousness” rejections) all differences are dismissed with a wave of the hand. I’m surprised there wasn’t a 102 rejection based on a florescent light bulb.

      2. Ned: “Les, the claims at issue were all added during reexam. Claim 118 was representative:”

        Interesting, I got my claim from the image file wrapper for: 90/010,940. I looked for amendments and didnt find any. Where did you find your claim?

  3. “[Cree’s] accompanying ‘impermissible hindsight’ is essentially a repackaging of the argument that there was insufficient evidence of a motivation to combine the references.”

    Yeah, so…. How is it refuted?

    “Cree’s secondary considerations were insufficient to outweigh strong evidence of obviousness. “[S]elfserving statements from researchers about their own work do not have [much] reliability.” Regarding licensing, “Cree … provided press releases evidencing that it … entered into licensing transactions, but [did] not shown that the licenses were based on the merits of the ’175 patent.” Further, commercial success of a product only operates as a secondary consideration of nonobviousness if coupled with a nexus between that success and the claimed features of the patent.”

    Well why else would someone by an expensive Cree white light LED?

    1. why else would someone by an expensive Cree white light LED?

      Maybe Cree will hire you for the Supreme Court appeal, Les.

  4. The CAFC: In a portion of the examiner’s answer adopted by the Board, the examiner explained that “the phosphors’ ability to convert the UV-to-blue light is predicated only on whether or not it can absorb a given wavelength of light, not on which kind of light source a particular wavelength of light is emitted, laser, LED, or
    otherwise, as a [person of ordinary skill in the art] would readily appreciate.” In other words, a phosphor does not care how an incident photon of light at a particular wavelength was generated.

    Surely we’ll see a petition to the Supreme Court to overrule this flagrant violation of the Rule Against Anthropomorfication.

    LOL

    1. Y
      A
      W
      N

      Malcolm, your attempted spin and denigration of the word “Anthropomorphication” is neither on point nor illuminating in any manner whatsoever.

      It is blight, pure and simple.

      Happy Decade of Decadence.

      1. “anon” nor illuminating in any manner whatsoever.

        On the contrary, it “illuminates” the inanity of the script that you re-post everytime somebody writes, e.g., “The computer does not care whether the number it’s crunching is derived from satellite data or grandma’s checking account data”.

        I know all this way too complicated for you. But it’s not too complicated for the Federal Circuit, as you’ve just learned (but everyone else already knew).

        Now pick up your shovel and start digging.

    2. Technically speaking, leaving aside for now whether Anthropomorfication of the phosphor occurred here or not, the decision “does not care” in this instance, because the positive ruling, being based on the non-caring of the phosphor, the conclusion flows from the necessary implication that the phosphor will react the same way. That is the relevant finding, and it is factually true.

      Moreover, literally speaking the phosphor DOES NOT care, and a statement to that effect actually does not Anthropomoficize the phosphor but merely identify a certain attribute it lacks, i.e. the ability to care. This identification of a truth regarding an entity and it non-possession of human consciousness and equally attributes of human cognition, far from incorrect, is the inverse of the mistake of “Anthropomorfication.”

      Speaking of lacking the ability to care…

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