Ex parte Boulos et al.

Board of Patent Appeals and Interferences

Dec 19, 2001

08988481 (B.P.A.I. Dec. 19, 2001)

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The opinion in support of the decision being
entered today was not written for publication
in a law journal and is not binding precedent
of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte EDWARD NASHED BOULOS
and
JAMES VICTOR JONES

Appeal No. 2000-1849
Application No. 08/988,481

ON BRIEF

Before KIMLIN, GARRIS and LIEBERMAN, Administrative Patent
Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-
24. Claim 1 is illustrative:
1. A nitrate/nitrite-free method for retarding the
volatilization of selenium used as a colorant in preparing a
glass composition by including a manganese compound colorant
along with the selenium without nitrate or nitrite compounds
Appeal No. 2000-1849
Application No. 08/988,481
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during the melt processing of the glass composition, the
manganese compound being included to provide 0.1 to 1.0 wt. %
manganese oxide as MnO weight percent based on the total2
weight of the glass composition.
The examiner relies upon the following references as
evidence of obviousness:
Barrett et al. (Barrett) 4,341,566 Jul. 27, 1982
Jones et al. (Jones) 5,346,867 Sep. 13, 1994
Appellants' claimed invention is directed to a nitrate/
nitrite-free method for retarding the volatilization of
selenium in the preparation of a glass composition. The method
entails including the recited amount of MnO during the melt2
processing
of the glass composition. According to appellants'
specification, "[w]e have unexpectedly found that the manganese
compound, e.g., used in the gray glass of Jones '867 to retain
selenium, also has sufficient oxidizing ability which allows
nitrates and nitrites
to be avoided throughout the manufacturing process of the
selenium containing glass, contrary to what was formerly
believed" (page 2, last paragraph). The specification explains
in the following sentence that "[t]his also allows the amount
of sodium sulfate to be desirably increased over that which
Appeal No. 2000-1849
Application No. 08/988,481
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would normally be used when nitrates are included in the batch
materials, which improves the fining action of the sulfates
without negatively impacting the selenium retention."
Appealed claims 1-24 stand rejected under 35 U.S.C. § 103
as being unpatentable over Jones, alone, or in view of
Barrett.
Upon careful consideration of the opposing arguments
presented on appeal, we will not sustain the examiner's
rejections. In essence, we are in full agreement with the
position espoused by appellants in the Brief. We add the
following for emphasis only.
The basis for the examiner's rejections is the Jones
disclosure that "[w]e have unexpectedly discovered that
introducing manganese oxide in the batch increases the
retention of selenium in the glass product over and above that
obtained by incorporating nitrates" (column 2, lines 32-35).
Notwithstanding the affidavit of patentee Jones and the
exemplified glass compositions of Jones, the examiner holds to
the argument that the referenced portion of Jones "does
suggest that nitrates are not needed" (page 5 of Answer, first
paragraph). However, as urged by appellants, there is no
Appeal No. 2000-1849
Application No. 08/988,481
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evidence of record which supports the examiner's position that
one of ordinary skill in the art would have interpreted Jones
as meaning that nitrates may be eliminated from the glass
composition. In our view, appellants' position is reasonable
that "using manganese oxide with nitrates provides a level of
selenium retention greater than that provided using nitrates
alone" (page 6 of Brief, first full paragraph), particularly
in light of the supporting affidavit by patentee Jones.
The examiner's reliance on Barrett for the teaching that
"the addition of sodium nitrate causes the generation of
oxides of nitrogen which are air pollutants" (page 4 of
Answer, last sentence), although providing motivation for
eliminating nitrates, does not remedy the deficiency in Jones
argued by appellants and discussed above.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is reversed.
REVERSED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
Appeal No. 2000-1849
Application No. 08/988,481
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)
BRADLEY R. GARRIS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
PAUL LIEBERMAN )
Administrative Patent Judge )
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