Ex Parte Berkey et al

Board of Patent Appeals and Interferences

Nov 13, 2008

10663475 (B.P.A.I. Nov. 13, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GEORGE E. BERKEY, DANA C. BOOKBINDER,
RICHARD M. FIACCO, JEFFREY T. KOHLI,
and DALE R. POWERS
____________

Appeal 2008-2390
Application 10/663,475
Technology Center 1700
____________

Decided: November 13, 2008
____________

Before CHARLES F. WARREN, THOMAS A. WALTZ, and
LINDA M. GAUDETTE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL
Appeal No. 2008-2390
Application No. 10/663,475

STATEMENT OF THE CASE
This is an appeal from the Examiner’s final rejection of claims 1-14
and 16-19, the only claims remaining in the application. 35 U.S.C. § 134.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The invention relates to a method of treating optical fiber preforms
with deuterium. (Spec. [0001].) More specifically, the method of the
invention is “used to provide reduced levels of hydroxyl ions or OH ions in
an optical waveguide preform, such as an optical fiber preform.” (Spec.
[0037].)
Independent claim 1 is illustrative of the claimed process:1
1. A method of forming an optical fiber preform, the
method comprising:

providing a consolidated glass preform precursor body
having an outer surface;

depositing a layer of silica soot onto the outer surface of
the consolidated glass preform precursor body to form a
composite preform comprised of a consolidated glass portion
and a silica soot portion; and

in a deuterium-exposing step, exposing the composite
preform to an atmosphere containing a concentration of D2 or
D2O or a mixture of D2 or D2O for a time and at a temperature
sufficient to cause the D2 or D2O to penetrate the consolidated
glass portion without entirely pervading the consolidated glass
portion.

1 Reproduced from the Claims Appendix to Appellant’s Brief on Appeal
(“Br.”, filed October 11, 2007). Our decision also makes reference to the
Examiner’s Answer (“Ans.”, mailed November 28, 2007).
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The Examiner relies upon the following references in rejecting the
appealed claims:
Gilliland 4,810,276 Mar. 7, 1989
Burrus 4,515,612 May 7, 1985

Claims 1-14 and 16-19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gilliland and Burrus.2 Appellants, in the Appeal
Brief, argue claims 1-5, 8, 10, 16, and 18-19 as a group. (Br. 12-19.)
Accordingly, we select representative claim 1 to decide the appeal as to this
group of claims. 37 C.F.R. § 41.37(c)(1)(vii). Appellants have separately
argued and, therefore, we separately consider the patentability of each of
dependent claims 6, 7, 9, 11-14, and 17.
The Examiner finds that Gilliland discloses a method of forming a
composite fiber preform comprising depositing a layer of silica soot upon
the outer surface of a consolidated glass preform body. (Ans. 4-5.) The
Examiner concedes that Gilliland does not teach a deuterium-exposing step
as claimed. (Ans. 5.) However, the Examiner finds that Burrus teaches
exposing preforms to deuterium for the purpose of lowering fiber loss.
(Ans. 5.) The Examiner contends that it would have been obvious to one of
ordinary skill in the art at the time of the invention to have modified the
preform manufacturing process of Gilliland by employing a deuterium-
exposing step as taught by Burrus for the purpose of lowering fiber loss.
(Ans. 5.) The Examiner further contends that the resultant, modified
preform manufacturing process would inherently be carried out “for a time
and temperature sufficient to cause the D2 or D2O to penetrate the

2 The rejection of claims 4-11 and 16 under 35 U.S.C. §112, second
paragraph has been withdrawn. (Ans. 3.)
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consolidated glass portion without entirely pervading the consolidated glass
portion.” (Claim 1, see Ans. 5-6.)
Appellants contend that the Examiner’s proposed motivation to
combine Gilliland and Burrus is based on improper hindsight reasoning.
(See Br. 3, 6.) Appellants further argue that even if Gilliland and Burrus
were properly combined, the claimed invention would not result. (Br. 3.)
Specifically, Appellants contend that the limitation “for a time and
temperature sufficient to cause the D2 or D2O to penetrate the consolidated
glass portion without pervading the entire [consolidated] glass portion” is
not “mentioned or suggested” by the cited references, and the Examiner’s
inherency theory regarding the limitation is not properly based in fact. (Br.
7.)
ISSUES
Based on the contentions of the Examiner and the Appellants, the
issues presented for our review are:
(1) Have Appellants shown that the Examiner reversibly erred by
failing to establish proper motivation to combine Gilliland and Burrus?
(2) Have Appellants shown that the Examiner failed to establish a
prima facie case of obviousness because the facts and reasons relied on by
the Examiner are insufficient to show that application of Burrus’ deuterium-
exposing step in Gilliland’s preform manufacturing process would
inherently occur “for a time and temperature sufficient to cause the D2 or
D2O to penetrate the consolidated glass portion without entirely pervading
the consolidated glass portion”?
(3) Have Appellants shown that the Examiner reversibly erred in
concluding that the subject matter of dependent claims 6, 7, 9, 11-14, and 17
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would have been obvious to one of ordinary skill in the art at the time of the
invention in view of the combined teachings of Gilliland and Burrus?
We answer each of these questions in the negative for the reasons
discussed below.
FINDINGS OF FACT (“FF”)
1) According to the Specification, the Inventors “have found
that uncontrolled exposure to a deuterium-containing compound can
result in overdosing the glass portion 10 of the composite optical fiber
preform 30 with deuterium-containing compound to such an extent
that the attenuation of light signals passing through optical fiber
drawn therefrom is undesirably or unacceptably increased.” (Spec.
[0047].) The inventors have found that this problem can be avoided
by ensuring that exposure of the composite optical fiber preform to
the exchange atmosphere comprising deuterium-containing compound
occurs for a time and at a temperature sufficient to promote exchange
of the hydrogen but “for a time short enough and at a temperature
sufficiently low enough to prevent deuterium compound from
penetrating deep into the center of the glass portion 10.” (Spec.
[0048].) More specifically, the Specification states that exposure to
the exchange atmosphere is preferably “terminated before any
deuterium-compound reaches the centerline of the composite optical
fiber preform,” and even more preferably, “prior to any deuterium
compound being introduced beyond a desired depth (or beyond a
desired thickness) into the composite preform.” (Spec. [0049].)
2) According to the Specification, the composite optical fiber
preform is preferably “exposed to the exchange atmosphere such that
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greater than 50% of the OH compound in the glass portion is
exchanged with OD compound, as measured, for example, on a
weight or volume basis, or as reflected in a reduction in the peak OH
concentration.” (Spec. [0050].) “More preferably, greater than 70%
of the OH compound is exchanged with OD compound in the glass
portion 10. In preferred embodiments, less than 100% of the OH
compound is exchanged with OD compound in the glass portion 10.”
(Spec. [0050].)
3) According to the Specification, “the exchange step
comprises heating the composite optical fiber preform 30 to an
exchange temperature in the range of about 600 ºC to less than the
consolidation temperature of the soot layer . . ., and still more
preferably between about 850 ºC and about 1250 ºC.” (Spec. [0052].)
4) According to the Specification, “the exposure to the
deuterium atmosphere during the exchange step occurs for greater
than about 30 seconds, more preferably greater than about 1 minute.
In one preferred embodiment, deuterium exposure lasts for greater
than about 10 minutes.” (Spec. [0053].)
5) According to Gilliland, in a conventional outside vapor
deposition (“OVD”) process, “glass particles, often referred to as soot,
are directed laterally or axially onto a starting member. . . . A fiber
having a core and cladding is usually formed by depositing a
cylindrically-shaped preform of core glass particles and cladding glass
particles and consolidating that preform to form a draw blank which
can be drawn into a fiber.” (Gilliland, col. 1, ll. 21-29.) Gilliland
states that a drawback of this process is that “[d]uring the
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consolidation process, dopant from the core portion of the porous
preform can migrate through the pores to the cladding portion, thereby
creating a dopant-depleted region at the edge of the core and a
corresponding dopant-rich region in the adjacent cladding. The
resultant core-cladding interface is not sufficiently abrupt for certain
applications.” (Gilliland, col. 1, ll. 29-36.) Gilliland’s invention is
directed to overcoming this problem. (Gilliland, col. 1, ll. 39-43.)
6) Gilliland’s inventive method “comprises forming a glass rod
the composition of which includes a base glass and at least one
dopant, the concentration of which changes radially from an
acceptable level within the rod to an unacceptable level in a surface
region of the rod. The rod can be formed, for example, by depositing
glass particles on a mandrel, removing the mandrel, and consolidating
the resultant porous body to form a non-porous rod.” (Gilliland, col.
1, ll. 44-52.) Gilliland removes the unacceptable, dopant-poor surface
region created by out-diffusion of dopant during consolidation,
preferably by immersing the rod in an etchant. (Gilliland, col. 1, ll.
52-55.) Gilliland then applies a layer of cladding glass to the rod.
The composition of the cladding glass is different from that of the rod;
for example, it could be cladding glass having a refractive index lower
than that of the rod. Prior to applying the cladding glass, the rod can
be heated and stretched to form an elongated core bait rod. The
cladding layer can be applied by depositing a plurality of layers of
cladding glass particles on the surface of the core bait rod and heating
the resultant assembly to consolidate the cladding glass particles.
(Gilliland, col. 1, l. 44-col. 2, l. 3.)
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7) Burrus discloses a method for reducing attenuation of
electromagnetic radiation traveling through an optical fiber, in
particular, “attenuation due to absorption by impurities present in the
guiding region of the fiber” (Burrus, col. 1, ll. 27-30), i.e., the core of
the fiber (Burrus, col. 4, ll. 20-23). Burrus’ method is based on the
discovery “that the known process of deuterium/hydrogen exchange in
vitreous silica containing OH can be applied to silica-based optical
fibers and to optical fiber preforms (i.e., the bodies from which fibers
are drawn).” (Burrus, col. 2, ll. 19-24.) According to Burrus,
exposing preforms to deuterium lowers fiber loss . . . without
significantly affecting important fiber parameters such as refractive
index profile, or numerical aperture, bandwidth, scattering loss, and
absorption due to species other than OH. (Burrus, col. 2, ll. 24-35.)
8) According to Burrus, “the mode of practicing the invention
typically depends on the method used for fabrication of the fiber,
more particularly, the method used for fabrication of the body from
which the fiber is drawn, the so-called preform.” (Burrus, col. 4,
ll. 3-7.) Burrus specifically notes that “[m]ethods for manufacturing
optical fiber preforms and for producing optical fibers therefrom, as
well as fiber designs and properties of structures embodying these
designs, are well known in the art and will not be discussed herein.”
(Burrus, col. 2, ll. 8-12.)
9) Burrus explains that “[t]he diffusion characteristics of
deuterium in glassy silica are very similar to those of hydrogen. . . .
Since the required diffusion distance depends on the details of the
sample in which the exchange is to take place, it is generally not
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possible to set quantitative limits on this distance. . . . The amount of
deuterium incorporated into the bulk of a sample is, inter alia, a
function of the partial pressure of deuterium present in the atmosphere
in contact with the sample.” (Burrus, col. 2, l. 65-col. 3, l. 17.)
10) Burrus explains that “[w]hen diffusing deuterium atoms
encounter OH they can undergo a reversible exchange reaction with
the bound hydrogen. This reaction typically is very efficient, thus the
number of deuterium atoms need not greatly exceed the number of
bound hydrogen atoms in order to get substantial D/H exchange. . . .
The de-bonded hydrogen is mobile and can, unless undergoing the
reverse reaction, encountering a trapping site, or becoming relatively
immobile due to a drop in the sample temperature, diffuse to a surface
and be lost from the sample. Any OD incorporated into the sample
contributes little to absorption of light in the relevant wavelength
regime since the specific absorption due to OD is about two orders of
magnitude less than that of OH in the relevant wavelength region.”
(Burrus, col. 3, ll. 19-40.)
11) According to Burrus, the D/H exchange reaction typically
can proceed at any temperature above the minimum temperature,
typically 300 °C, up to, and even above, the softening temperature of
the glass. (Burrus, col. 3, ll. 50-57.)
12) Burrus teaches that preforms having a consolidated deposit
may be contacted with an atmosphere containing deuterium “for a
length of time sufficient to permit diffusion of deuterium for a
sufficient distance into the deposit.” (Burrus, col. 5, ll. 28-31.)
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13) Burrus teaches that deuteration “can take place at any
appropriate stage of the article manufacturing process, for instance,
after the formation of the tube or rod.” (Burrus, col. 6, ll. 34-37.)
14) Burrus teaches deuteration exposure times ranging from 30
seconds (Burrus, col. 2, ll. 64-65) to 90 hours (Burrus, col. 7, ll. 8-10).
CLAIM INTERPRETATION
Our consideration of the issues in this Appeal begins with
interpretation of the claim language in dispute. See Panduit Corp. v.
Dennison Mfg. Co., 810 F.2d 1561, 1567-68 (Fed. Cir. 1987) (In making a
patentability determination, analysis must begin with the question, “what is
the invention claimed?” since “[c]laim interpretation, . . . will normally
control the remainder of the decisional process.”). Thus, we first consider
the scope and meaning of the claim 1 phrase “exposing the composite
preform to an atmosphere containing a concentration of D2 or D2O or a
mixture of D2 or D2O for a time and at a temperature sufficient to cause the
D2 or D2O to penetrate the consolidated glass portion without entirely
pervading the consolidated glass portion.”
During examination, claims terms must be given their broadest
reasonable construction consistent with the Specification. In re Icon Health
and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007)(“[T]he PTO must
give claims their broadest reasonable construction consistent with the
specification. . . . Therefore, we look to the specification to see if it provides
a definition for claim terms but otherwise apply a broad interpretation.”).
Interpreting the claim language “for a time and temperature sufficient
to cause the D2 or D2O to penetrate the consolidated glass portion without
entirely pervading the consolidated glass portion” in light of the
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Specification, we determine that the broadest reasonable interpretation of
claim 1 requires a deuterium exposure step in which conditions (e.g., time
and temperature) are controlled such that no deuterium-compound reaches
the centerline of the composite optical fiber preform. (See FF 2, 3.) We
decline to read the claim language as limiting the nature of the conditions,
i.e., we do not view the claim language as limited to a specific temperature
range or maximum exposure time (see FF 4). Rather, we are in agreement
with the Examiner that any type of condition, including elimination of D2 or
D2O by conversion or reaction, may be employed to ensure that no
deuterium-compound reaches the centerline of the composite preform. (See
Ans. 6; FF 10.)
PRINCIPLES OF LAW AND ANALYSIS
Having determined the scope and meaning of the claim language in
dispute, we now address the issues presented in this Appeal.
Issue (1):
Appellants contend that the Examiner failed to properly establish
motivation to combine the teachings of Burrus and Gilliland for the
following reasons: (1) there is no indication in Burrus that the disclosed
deuterium treatment can be applied to an OVD preform manufacturing
process (i.e., the process used in Gilliland) (Br. 4) and that such treatment
would reduce fiber loss in an OVD process (Br. 6), (2) Burrus teaches away
from applying a deuterium treatment at any time in a preform process other
than MCVD (Br. 4-5), and (3) Burrus teaches away from applying a
deuterium treatment to an unconsolidated deposit (Br. 6).
“When there is a design need or market pressure to solve a problem
and there are a finite number of identified, predictable solutions, a person of
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ordinary skill has good reason to pursue the known options within his or her
technical grasp. If this leads to the anticipated success, it is likely the
product not of innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might show that it
was obvious under § 103.” KSR Int'l Co. v. Teleflex, Inc., 127 S. Ct. 1727,
1742 (2007). “The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the
primary reference . . . . Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in the art.” In
re Keller, 642 F.2d 413, 425 (CCPA 1981). See also, In re Fritch, 972 F.2d
1260, 1264-65 (Fed. Cir. 1992) (reference stands for all of the specific
teachings thereof as well as the inferences one of ordinary skill in this art
would have reasonably been expected to draw therefrom); In re Heck, 699
F.2d 1331, 1332-33 (Fed. Cir. 1983) (disclosure of a reference may be relied
upon for all it contains, and is not limited to what is disclosed in the
examples).
Contrary to Appellants’ contention, we are in agreement with the
Examiner that Burrus clearly suggests that the disclosed deuterium exchange
process may be employed in conjunction with any known method for
manufacturing optical fiber preforms. (FF 7, 8, 13.) Moreover, we are in
agreement with the Examiner that it would have been within the skill level
of the ordinary artisan at the time of the invention to have modified known
preform processes to include Burrus’ deuterium treatment step (Ans. 9) and,
in fact, Burrus suggests the same (FF 8, 9). Burrus clearly indicates that
deuterium exchange may be used as an additional step in known preform
processes, providing the added benefit of reduced fiber loss “without
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significantly affecting important fiber parameters such as refractive index
profile” (Burrus, col. 2, ll. 31-32). (FF 7.) Therefore, we find that the
Examiner provided a reasonable basis to conclude that one of ordinary skill
in the art would have been motivated to employ Burrus’ deuterium exchange
process in Gilliland’s preform fabrication process (FF 6) to reduce fiber loss,
especially since Burrus indicates that parameters important to Gilliland, e.g.
refractive index (FF 5), will not be adversely affected (FF 7).
Issue (2):
Appellants also argue that the Examiner failed to provide sufficient
facts and reasons to establish that application of Burrus’ deuterium-exposing
step in Gilliland’s preform manufacturing process would inherently occur
“for a time and temperature sufficient to cause the [D2 or D2O] to penetrate
the consolidated glass portion without pervading the entire [consolidated]
glass portion” (Br. 7.)
“The inherent teaching of a prior art reference, a question of fact,
arises both in the context of anticipation and obviousness.” In re Napier, 55
F.3d 610, 613 (Fed. Cir. 1995). Where the Examiner establishes a
reasonable assertion of inherency and thereby evinces that a claimed process
appears to be identical to a process disclosed by the prior art and/or that the
products claimed by the applicant and disclosed in the prior art appear to be
the same, the burden is properly shifted to the applicant to show that they are
not. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re Best, 562
F.2d 1252, 1254-56 (CCPA 1977).
Contrary to Appellants’ contention, we find that the Examiner
provided a reasonable basis to conclude that the combined teachings of
Gilliland and Burrus would inherently result in the method as claimed.
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Burrus specifically contemplates a deuterium treatment in which “[a]ny OD
incorporated into the sample contributes little to absorption of light in the
relevant wavelength regime” (Burrus, col. 3, ll. 36-38). (FF 10; see FF 1
(explaining that overdosing the glass portion of the composite optical fiber
preform with deuterium-containing compound can result in an unacceptable
increase in attenuation of light signals passing through optical fiber drawn
therefrom)). Burrus notes that the reaction typically is very efficient, thus
the number of deuterium atoms need not greatly exceed the number of
bound hydrogen atoms in order to get substantial D/H exchange. (FF 1; see
FF 3 (noting that exchange of OH with OD compound is preferably greater
than 70%, but less than 100%).) Though not specifically stating that the
deuterium compound should not entirely pervade, Burrus clearly indicates
that diffusion of deuterium should only occur for a specified, or limited
distance into the deposit. (FF 12.) Moreover, the deuteration exposure
times and temperatures used by Burrus overlap those of Appellants.
(Compare FF 11, 14 with FF 4.) Thus, it reasonably appears that one of
ordinary skill in the art at the time of the invention, applying a deuterium-
exposing step in Gilliland’s preform manufacturing process based on
Burrus’ disclosure, would perform such step in a manner that would
inherently prevent overdosing of the glass portion with deuterium-containing
compound, i.e., prevent deuterium from reaching the center line of the
composite optical fiber preform. (See claim interpretation, supra, p. 11.)
Issue (3):
We have separately considered Appellants’ arguments for
patentability of each of dependent claims 6, 7, 9, 11-13, and 17 (Br. 7-10.)
However, we find that the weight of the evidence in the record before us
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weighs in favor of the Examiner’s conclusion of obviousness for the reasons
well-stated in the Answer (see Ans. 7-8 and 13-17).
In traversing the rejection of dependent claims 6, 7 (Br. 7-8), 9 (Br. 8)
and 17 (Br. 10), Appellants narrowly focus on selected passages within
either Gilliland or Burrus. However, the test for obviousness is what the
collective teachings of the prior art would have suggested to one of ordinary
skill in the art. In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991); Keller, 642
F.2d at 425. Cf. In re Hedges, 783 F.2d 1038, 1041 (Fed. Cir. 1986)
(quoting In re Wesslau, 353 F.2d at 241) (“It is impermissible within the
framework of section 103 to pick and choose from any one reference only so
much of it as will support a given position, to the exclusion of other parts
necessary to the full appreciation of what such reference fairly suggests to
one of ordinary skill in the art.”). In our view, the Examiner’s Answer
provides sufficient factual findings and reasons to support a conclusion that
the recited features in each of claims 6, 7, 9 and 17 are disclosed or
suggested by the combined teachings of Gilliland and Burrus (see Ans. 7, 8,
13 (noting a citation to a specific column and lines in a reference “is an
indication that one should ‘see’ the passage and combine it with all the prior
discussion of the prior art”), and 16-17). Appellants’ arguments fail to
refute the facts and reasons relied on by the Examiner and, therefore, fail to
establish reversible error in the Examiner’s rejection of claims 6, 7, 9, and
17 as unpatentable over Gilliland in view of Burrus
Similarly, with respect to claims 11-14, Appellants focus on the
Examiner’s failure to identify explicit teachings of the recited claim features
(Br. 8-10). However, Appellants have not refuted the Examiner’s
determination that one of ordinary skill in the art would have been familiar
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with OVD fiber manufacturing processes and would have had the necessary
skills to modify and optimize the explicitly disclosed steps of Gilliland and
Burrus, thereby achieving Appellants’ claimed invention (see Ans. 7-8 and
11-17 (e.g., Ans. 14, “It remains undisputed that ‘it is well-known to use an
inert purge gas in the fiber making art between steps. . . .’ Appellant fails to
point out how . . . the Official Notice is improper.”)). See KSR Int'l Co. v.
Teleflex Inc., 127 S. Ct. 1727, 1740-41 (2007) (“[T]he analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.”).
CONCLUSIONS
Appellants have not shown that the Examiner reversibly erred by
failing to establish proper motivation to combine Gilliland and Burrus.
Appellants have not shown that the Examiner failed to establish a
prima facie case of obviousness because the facts and reasons relied on by
the Examiner are insufficient to show that application of Burrus’ deuterium-
exposing step in Gilliland’s preform manufacturing process would
inherently occur “for a time and temperature sufficient to cause the D2 or
D2O to penetrate the consolidated glass portion without entirely pervading
the consolidated glass portion.”
Appellants have not shown that the Examiner reversibly erred in
concluding that the subject matter of dependent claims 6, 7, 9, 11-14, and 17
would have been obvious to one of ordinary skill in the art at the time of the
invention in view of the combined teachings of Gilliland and Burrus.
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ORDER
The decision of the Examiner rejecting claims 1-14 and 16-19 under
35 U.S.C. § 103(a) as being unpatentable over Gilliland in view of Burrus is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

PL Initial:
sld

CORNING INCORPORATED
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