Ex Parte D

Board of Patent Appeals and Interferences

Sep 17, 2007

10832450 (B.P.A.I. Sep. 17, 2007)

The opinion in support of the decision being entered today is not binding
precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN JOSEPH D'ERRICO
____________
Appeal 2007-3412
Application 10/832,4501
Technology Center 1700
____________

Decided: 17 September 2007
____________

Before RICHARD TORCZON, CAROL A. SPIEGEL, and MARK
NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
A. Introduction
Applicant ("D'Errico") appeals under 35 U.S.C. § 134 from the final
rejection of claims 1–7 and 9–21, which are all of the pending claims, under

1 Application filed 27 April 2004. The real party-in-interest is listed as
Solutia, Inc. (Appeal Brief filed 27 November 2006 ("Br.") at 1.)
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35 U.S.C. § 103(a) in view of prior art. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM.
The subject matter on appeal relates to heat-reflective laminated glass
panels such as those found in automobile windshields. Claim 1 is
representative and reads as follows:
1. A laminated glass panel, comprising:
a glass layer;
an infrared reflective layer disposed in contact
with said glass layer; and
a polymer layer disposed in contact with said
infrared reflective layer, wherein said polymer
layer comprises poly(vinyl butyral) and has a glass
transition temperature of 23°C or less.
(Br. at 8 (Claims Appendix).)
The Examiner has rejected claims 1–7 and 9–21 under 35 U.S.C.
§ 103(a) as being unpatentable in view of the combined teachings of
D'Errico 8612, D'Errico 8483, and Toyama4. (Examiner's Answer mailed
7 March 2007 ("Answer") at 3.)
D'Errico has not argued for the separate patentability of the claims.
Therefore, all claims stand or fall with claim 1. Moreover, D'Errico has not
challenged the status of the references as prior art. Any argument not

2 U.S. Patent 5,427,861 to John J. D'Errico, 27 June 1995.
3 U.S. Patent 5,529,848 to John J. D'Errico, 25 June 1996.
4 U.S. Patent 6,903,152 B2, issued 7 June 2005, to Kiyofumi Toyama et al.,
based on application 10/220,197, based on PCT/JP01/01620, filed 2 March
2001.
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included in the Principal Brief has been waived, absent a showing of good
cause. 37 C.F.R. § 41.37(c)(1)(vii).
B. Findings of Fact
The following findings of fact and any set out in the Discussion are
supported by a preponderance of the evidence of record.
1. According to D'Errico, windows that reflect infrared radiation while
transmitting visible light are well known, as are such windows adapted for
use as motor vehicle windshields. (Specification at 1:11–19.)
2. According to the Specification, "[s]uch solar screening and/or
electrically conductive layered assemblies are referred to in abbreviated
form . . . as 'IR reflective coating.'" (Specification at 1:19–21.)
3. Such windows are known to include a plasticized energy absorbing
interlayer that contains a sheet of a polymer such as polyvinylbutyral
("PVB") in contact with the IR reflective coating. (Specification at 1:22-27.)
4. The Specification teaches further that it is known that the bonding
strength between the IR reflective coating and the PVB can weaken over
time. (Specification at 1:28–29.)
5. According to the inventor, providing a PVB layer having a glass
transition temperature ("Tg") of 23°C or less results in an improved product
having improved long term stability. (Specification at 3:11–13.)
6. The Specification teaches that "[t]he amount of plasticizer can be
adjusted to affect the glass transition temperature of the poly(vinylbutyral)
sheet. In general, higher amounts of plasticizer are added to decrease
the Tg." (Specification at 6:19–21.)
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7. According to the Specification, "[i]n various embodiments of polymer
sheets of the present invention, the polymer sheets can comprise 10 to 90,
15 to 85, 20 to 60, 25 to 60, 20 to 80, 25 to 70, and 25 to 60 parts plasticizer
per one hundred parts of resins." (Specification at 6:13–15.)
8. The Specification indicates that any suitable method can be used to
produce the polymer sheets of the invention and that details of the methods
are well known to those skilled in the art. (Specification at 11:10–12.)
9. Moreover, the Specification indicates that any suitable plasticizer can
be used. (Specification at 12:3-4.)
10. According to the Specification, long term stability can be measured by
subjecting a laminated glass sample to a source of intense UV radiation from
any of several commercially available units and then administering the
Pummel Adhesion Test. (Specification at 8:18–26.)
11. The Specification teaches that in the Pummel Adhesion Test, "[t]he
laminates are cooled to about -17°C (0°F) and manually pummeled with a
hammer to break the glass." (Specification at 13:22–26.)
12. The glass that remains adhered to the PVB sheet is visually compared
with a set of standards and a pummel adhesion ("PA") value is assigned.
When no glass remains adhered, the PA value is zero; when all the glass
remains, the PA value is 10. (Specification at 13:27 to 14:1.)
13. According to the Specification, laminated glass panels of the present
invention have a PA of "at least three, at least 5, at least 8, at least 9, or 10."
(Specification at 14:1–3.)
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14. The Specification presents a table in which two glass laminates, one
having a PVB layer with a Tg of 18°C and the other having a PVB layer with
a Tg of 30°C are compared. (Specification at 16.)
15. After 1 and 2 year-equivalents of light exposure, the sample having
the low Tg plastic layer had a PA for the glass layer in contact with the
infrared reflective layer of 5.0 (starting from 6.0 before UV exposure),
whereas the corresponding glass layer in the sample having the high Tg
plastic layer had a PA of 1.5 (starting from 5.0). (Specification
at 15:29-16:11.)
16. Interestingly, the PA for the glass on the other side of the plastic layer
was lower (5.0 after 1000 and 2000 hours, starting from 6.0 at 0 hours) for
the low Tg assembly than for the high Tg assembly (8.0 after 1000 hours and
6.5 after 2000 hours, starting from 7.5 at 0 hours). (Specification at 16:5-6.)
D'Errico 861
17. D'Errico 861 describes laminated glazing panels having an IR
reflective coating in contact with a plasticized PVB layer. A second layer of
glass is laminated to the other side of the PVB layer to complete the glazing
panel. (D'Errico 861 at 2:41–55.)
18. According to D'Errico 861, the adhesion between the plasticized PVB
and the glass is so strong that the PVB does not absorb impact blows
effectively. (D'Errico 861 at 2:51–53.)
19. The solution, according to D'Errico 861, was to use divalent metal
salts of C1 to C8 carboxylic acids as adhesion control agents to reduce the
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adhesion to the glass while maintaining the long term bond between the
PVB sheet and the IR reflective coating. (D'Errico 861 at 2:53-3:21.)
20. D'Errico 861 refers to, and incorporates by reference U.S. Patent
5,013,779 to Fariss et al., which is commonly assigned to Monsanto Co., for
its description, at column 3, line 23 through column 4, line 15, of appropriate
PVB resins and plasticizers in the general amount of 15 to 50, preferably 25
to 40 parts plasticizer to 100 parts PVB resin (779 patent at 3:34-36).
(D'Errico 861 at 3:45-51.)
21. D'Errico 861 describes subjecting laminates to a source of intense UV
radiation—2000 hours is said to be "about equal to two years of intense
sunlight exposure as might be encountered in Arizona" (D'Errico 861
at 4:46-49)—followed by administering a Pummel Adhesion Test.
(id. at 4:65–5:15.)
22. D'Errico 861 Example 2 shows results for a laminate having a PVB
resin with 33 parts dihexyl adipate plasticizer and 0.427 parts magnesium
2-ethyl butyrate. (D'Errico 861 at 6:20–26.)
23. The following pummel adhesion results were reported for the glass on
the IR reflective side as a function of hours of UV exposure: 6(0), 5(100),
4(100), 6(1000), 5(2000); while PA results for the glass on the other side of
the PVB "were at all times between 3 and 6." (D'Errico 861 at 6:42–50.)
D'Errico 848
24. D'Errico 848 describes glass laminates comprising a heat-wave-
reflective coating and an impact-dissipating plasticized PVB sheet for
windshields and similar applications. (D'Errico 848 at 1:10–17.)
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25. The heat-wave-reflective coating is said to be photosensitive, in that
after long exposure to light, the bond between the coating and the PVB sheet
deteriorates. (D'Errico 848 at 1:39–41.)
26. In order to counteract the reduction of adhesion between the PVB
sheet and the photoreactive coating, D'Errico 848 adds an epoxy resin to the
PVB. (D'Errico 848 at 2:9–14.)
27. According to D'Errico 848, the plasticized PVB sheet containing the
epoxy resin must show a PA of at least 3.0 after at least 1000 hours exposure
in an accelerated aging exposure system. (D'Errico 848 at 2:66 to 3:3.)
28. The PVB resin is plasticized with about 20 to 80, more commonly
25 to 45 parts plasticizer per 100 parts resin. (D'Errico 848 at 3:57–60.)
29. Esters such as dihexyl adipate are said to be commonly employed as
plasticizers. (D'Errico 848 at 3:60–67.)
30. Results of a pummel adhesion test are reported for a control (no
epoxy) and five different epoxy resins (five parts per hundred parts
resin = 5 phr) dissolved in dihexyl adipate plasticizer (32 phr) and mixed
with a PVB resin (D'Errico 848 at 8:8 through 9:9; particularly at 8:8–11).
31. All PVB blends are said to have been satisfactory (i.e., PA of at
least 3) at 0 hours. (D'Errico 848 at 8:44-50.)
32. After 2000 hours of exposure to a xenon arc, epoxy E5 (a diepoxide of
poly(oxypropylene) glycol) provided PA vales of 4 for ZnO and In2O3 heat-
reflective layers, and a value of 3 for a TiO2 layer. (D'Errico 848, Table 1
at 9.)
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Toyama
33. Toyama issued 7 June 2005 based on U.S. application 10/220,197,
which is the national stage of PCT application PCT/JP01/01620, which was
filed on 2 March 2001. (Toyama, first page.)
34. The provisions of 35 U.S.C. § 371(c)(1), (2), and (4) were satisfied on
5 November 2002. (Toyama, first page.)
35. The PCT application was published as WO 01/64598 on 7 September
2001. (Toyama, first page.)
36. EP 1,281,690 A1 ("EP 690"), the published version of European
Patent Application 01908247.8, was filed 2 March 2001, based on
PCT/JP01/01620, and published on 5 February 2003.5
37. Toyama describes laminated glasses that comprise a pair of glass
panels sandwiching an interlayer film made of plasticized PVB. (Toyama at
1:15–25.)
38. The laminated glasses are said to be particularly suited for glazing of
automobiles. (Toyama at 1:26.)
39. Toyama is especially concerned with improving the sound insulation
performance of the laminated glass over a broad temperature range.
(Toyama at 3:20–24.)
40. According to Toyama, the goals of the invention are achieved in a
first aspect by using a blend of two polyvinylacetals having distinct

5 A copy of EP 690 has been made of record and has been mailed to D'Errico
along with this Decision.
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molecular weights to synthesize a PVB (Toyama at 2:42–60) and then
blending 30 to 70 parts per hundred of a plasticizer (id. at 7:42–53).
41. Esters, including dihexyl adipate, are named as preferred plasticizers;
certain diesters of triethylene glycol are particularly preferred. (Toyama
at 7:11–41.)
42. Toyama discloses that dynamic viscoelasticity measurements yield the
ratio of the storage elastic modulus to the loss elastic modulus ("the loss
tangent," also referred to as "tan δ"). (Toyama at 9:45–49.)
43. According to Toyama, when the tan δ measurement is carried out as a
function of temperature, tan δ assumes a maximum value at a temperature
that "corresponds to the glass transition temperature (Tg), that is to say the
softening point, of the material." (Toyama at 9:49–55.)
44. Toyama teaches that when Tg is near room temperature, sound
insulation performance is "remarkably good," but that the PVB film
becomes too soft to handle easily, and the impact resistance of the laminated
glass "tends to be insufficient." (Toyama at 9:56–63.)
45. Toyama teaches that glass laminates meet its objectives when the
temperature corresponding to the maximum of tan δ is not over 30°C.
(Toyama at 9:40–44.)
46. In Example 1, Toyama describes a laminate using a PVB plasticized
with 60 phr of a diester, but no properties of the laminate are disclosed.
(Example 1 at 15:51 to 16:9.)
47. Toyama exemplifies a number of glass laminates having PVB layers
plasticized with 39 or 40 phr ester, having tan δ maximum temperatures
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of 5°C to 10°C. (Toyama Table 2 at 21:1–30, Examples 1–4 and
comparative example 7; Table 3 at 25:1–50 (Examples 10-16, Comparative
examples 9–12); Table 5, Examples 18 and 18, and Comparative
Example 15.)
48. Comparative Example 15 is of special interest. An ITO (Indium-Tin-
Oxide) vapor-deposited heat ray-reflecting glass was used in lieu of one of
the sheets of float glass in a sandwich laminate, and a resin of PVB with
39 weight parts per hundred of plasticizer were used, yielding a tan δ
maximum at 8°C. (Toyama at 27:30–35 and Table 5.)
C. Discussion
Obviousness is a legal conclusion based on underlying findings of fact
as to the scope and content of the prior art and an evaluation of whether the
differences between the claimed invention and the prior art would have been
such that the claimed invention would have been obvious to one of ordinary
skill in the art. So-called secondary considerations, including evidence of
unexpected results, may provide indicia of obviousness or nonobviousness.
Graham v. John Deere Intl. Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966)
On appeal, the procedural burden of going forward is on the Appellant to
demonstrate reversible error by the Examiner.
The Examiner found that D'Errico 861 disclosed laminated glazing
panels having an infrared reflective layer, and in Example 2, PVB layers
having 33 parts per 100 parts of plasticizer. (Answer6 at 3.) The Examiner
found further that the glass laminate was disclosed to be useful in motor

6 Examiner's Answer mailed 7 March 2007 ("Answer").
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vehicle windshields to reduce heat build-up, and concluded that the "claimed
method of reducing electromagnetic radiation through an opening [i.e.,
claim 20] is met [sic: would have been obvious]. (Id.) The Examiner found
that although D'Errico 861 did not disclose the laminated structure recited in
claim 21, D'Errico 848 disclosed such a structure. (Id.) The Examiner also
found that D'Errico 848 describes PVB layers plasticized with 20–80 phr
plasticizer. (Id.)
The Examiner found further that Toyama disclosed plasticized PVB
interlayers for laminated glass, wherein the disclosed plasticizers were also
disclosed by D'Errico 848 and by the D'Errico Specification in similar
amounts. (Answer at 4.) The Examiner concluded that the effect of the
plasticizers on the Tg of the PVB layer would be the same, namely, to lower
the Tg to a similar value. (Id.) The Examiner noted further that Toyama
taught that the temperature of maximum tan δ corresponded to the glass
transition temperature. (Id.) The Examiner concluded that the Tg of the
plasticized PVB layer having 60 weight parts plasticizer per hundred weight
parts PVB would be about 6°C or less, as shown in Toyama Table 2. (Id.)
D'Errico does not challenge any of the Examiner's findings of fact.
(Answer at 3–7; Reply Brief filed 7 May 2007 ("Reply Br.") at 3–4.) Nor
does D'Errico challenge the status of Toyama as prior art. We hold all such
challenges waived, as D'Errico has had a full and fair opportunity to make
them, but has chosen to dispute only the conclusions the Examiner draws
from the findings of fact. Moreover, D'Errico's arguments are effectively
confined to the patentability of claim 1, i.e., D'Errico has not made any
separate arguments for the patentability of any other claim. Accordingly, we
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need consider only the patentability of claim 1 in view of D'Errico and
Toyama. 37 C.F.R. § 41.37(c)(1)(vii).
D'Errico asserts that the Examiner's offered motivation to combine the
references is inappropriately generic and vague, and lacks a compelling
reason to combine the references. (Br. at 4.) D'Errico insists that "[w]hat
the Examiner has really done, in fact, is extend the reach of Toyama's
alleged obviousness rendering capability to virtually every laminated
reference in existence." (Br. at 5, typeface emphasis not reproduced.) More
specifically, D'Errico complains that Toyama does not address the same
problems that concern the D'Errico references. (Br. at 6.) D'Errico
concludes that there can be no compelling reason to combine the teachings
of Toyama with those of D'Errico. (Id.)
These arguments are without merit. The Examiner found, and
D'Errico has not disputed, that the references teach laminated glass
structures suitable for automobile windshields. Moreover, the Examiner
found that the references teach IR-reflective glass laminated to plasticized
PVB that is plasticized using similar or common plasticizers. Accordingly,
the references are concerned with the same area of art, albeit with different
effects, of the same or similar additives on the same or similar polymer
layers and glass laminates. As the Supreme Court explained recently,
however, it is error to hold "that courts and patent examiners should look
only to the problem the patentee was trying to solve. . . . Under the correct
analysis, any need or problem known in the field of endeavor at the time of
invention and addressed by the patent can provide a reason for combining
the elements in the manner claimed." KSR Int'l Co. v. Teleflex, Inc., 127
S.Ct. 1727, 1742, 82 USPQ2d 1385, 1397 (2007). Here, the common
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utilities as a motor vehicle windshield or as glazing for buildings suggest a
large variety of common problems that one skilled in the art might wish to
address related to impact strength, adhesion of laminations, aging, etc.
As the Court explained, it is also error to assume "that a person of
ordinary skill attempting to solve a problem will be led only to those
elements of prior art designed to solve the same problem. . . . A person of
ordinary skill is also a person of ordinary creativity, not an automaton." Id.
Thus, quite the opposite from the myopic focus urged by D'Errico, we do not
doubt that the ordinary worker would look to the teachings of Toyama
regarding the effects of plasticizers on the glass transition temperature of
PVBs used as interlayers in glass laminates. The common ester plasticizers
(esters, e.g., dihexyl adipate) and the large overlap of recommended ranges
(861 patent, 15–50, preferably 25–40 phr (FF 20); 848 patent, 20–80, more
commonly 25–45 phr (FF 28); Toyama, 30–70 phr (FF 40)) would also have
suggested to the ordinary worker that the advantages taught by the various
references would likely be obtainable by incorporating the teachings into
related laminates. Moreover, the teachings of Toyama regarding the relation
between tan δ, Tg, and impact strength (FF 42–44) would have been of
special interest because it provides a measurable parameter that could be
used to predict the performance of the laminates.
D'Errico's argument that a "compelling reason" must exist to support
the obviousness of a combination of teachings (Br. at 4 and 6) is not the law.
Rather, the examiner must demonstrate that one of ordinary skill in the art
would find both a suggestion to perform that process, and a reasonable
expectation of successfully doing so in the prior art. In re Vaeck, 947 F.2d
488, 493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). Moreover, "the
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statement that a prima facie obviousness rejection is not supported if no
reference shows or suggests the newly-discovered properties and results of a
claimed structure is not the law." In re Dillon, 919 F.2d 688, 693,
16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc). As we have found, the
record supports the conclusion that the Examiner carried his burden of
demonstrating both a reason to combine the teachings of the references, and
a reasonable expectation of obtaining useful laminates by doing so.
The inquiry set forth by the Court in Graham v. John Deere, 383 U.S.
at 17, 148 USPQ at 467 is broad, and invites courts and examiners, "where
appropriate, to look at any secondary considerations that would prove
instructive." KSR, 127 S.Ct. at 1739, 82 USPQ2d at 1395. Although
D'Errico's arguments have no merit as arguments that a prima facie case of
obviousness has not been established, they do touch on the issue of
unexpected results. As the Federal Circuit has observed, "[t]here is always
at least a possibility of unexpected results, that would then provide an
objective basis for showing that the invention, although apparently obvious,
was in law nonobvious." In re O'Farrell, 853 F.2d 894, 903, 7 USPQ2d
1673, 1681 (Fed. Cir. 1988).
D'Errico contends that long term stability of a laminate comprising a
glass layer with an IR coating and an adjacent PVB layer is improved if a
low Tg PVB is used instead of a standard Tg PVB. (Br. at 4). Here, although
the data in Specification Example 1 are limited to the comparison of a glass
laminate having a PVB Tg of 18°C to a glass laminate having a PVB of
30°C, the evidence of improvement must be addressed and weighed against
the evidence favoring obviousness.
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The first difficulty is that Specification Example 1 does not put us in a
position to determine whether the alleged unexpected results have been
adequately compared to the prior art. In re Baxter Travenol Labs, 952 F.2d
388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991) ("when unexpected
results are used as evidence of nonobviousness, the results must be shown to
be unexpected compared with the closest prior art.") We are not informed,
for example, of any of the parameters of the PVB (e.g., the molecular weight
distribution, the degree of butyralization) or of the plasticizer (e.g., identity,
the amount used to achieve a Tg of 18°C or the amount used to achieve a Tg
of 30°C). Accordingly, we are not able to determine whether the examples
in either D'Errico reference are likely to have a Tg less than 23°C. The
amount of 33 parts per hundred plasticizer found by the Examiner in the
861 patent is well within the broad range disclosed by D'Errico's present
Specification: "the polymer sheets can comprise 10 to 90, 15 to 85, 20 to 60,
25 to 60, 20 to 80, 25 to 70, and 25 to 60 parts plasticizer per one hundred
parts of resins." (Specification at 6:13–15; FF 7.) The PA number for the
861 patent Example 2 glass layer adjacent to the IR reflective layer is 5 after
2000 hours of UV exposure, an amount said to be equivalent to two years of
Arizona sun. (861 patent at 4:46–51.) The amount of exposure and the PA
value in D'Errico 861 and 848 are strikingly similar to the presently alleged
evidence of "unexpected results" in Specification Example 1. However,
without knowing what the Tgs of the PVB layers in the 861 or 848 patents
were, we are unable to determine whether D'Errico's present results are
unexpected. Compare Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371, 82
USPQ2d 1321, 1338 (Fed. Cir. 2007) ("in order to properly evaluate whether
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a superior property was unexpected, the court should have considered what
properties were expected.")
Moreover, the 39–40 parts plasticizer in Toyama resulted in many Tgs
of 5–10°C. Thus, we find that the evidence of record tends to support the
Examiner's conclusion that the higher range of plasticizers taught in the
D'Errico patents or by Toyama would inherently have the required Tg of
23°C or less. (Final Rejection7 at 5; Answer at 5–6.) The burden has been
shifted properly to D'Errico to show that the prior art plasticized PVBs do
not have a Tg of 23°C or less. D'Errico has not, however, made the required
showing.
Furthermore, Toyama's Comparative examples 11 and 13, which have
significantly higher Tgs (Comparative example 11 has a Tg of 21°C;
Comparative example 13 has a Tg of 37°C) indicate that the nature of the
PVB may also be an important parameter for Tg, and that the amount of
plasticizer is not necessarily the controlling parameter. For this additional
reason, it is far from clear that the single comparison in D'Errico's
Specification is reasonably indicative of unexpected results commensurate in
scope with the claimed subject matter. Pfizer, 480 F.3d at 1370, 82 USPQ2d
at 1338.
Finally, we note as an aside, that Comparative example 15 in Toyama
appears8 to anticipate claim 1, as it describes a laminated glass comprising

7 Final Office Action mailed 22 June 2006 ("Final Rejection").
8 On the record before us, it is not certain that Toyama is prior art under 35
U.S.C. § 102(e) against the present claims, but D'Errico has waived
argument on that issue. In any event, we observe that Toyama's related EP
patent publication, EP 1,281,690 A1, has the same disclosure and is a 102(b)
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an ITO vapor-deposited heat ray-reflecting glass instead of a float glass in a
laminated glass sandwich and a resin of PVB with 39 weight parts per
hundred of plasticizer used, yielding a maximum tan δ at 8o C (FF 48).
Anticipation is the epitome of obviousness, In re May, 574 F.2d 1082, 1089,
197 USPQ 601, 607 (CCPA 1978), and evidence of unexpected results is
irrelevant if a claimed invention has been anticipated, In re Malagari, 499
F.2d 1297, 1302, 182 USPQ 549, 553 (CCPA 1974).
D. Summary
In view of the record and the foregoing considerations, it is
ORDERED that the rejection of claims 1–7 and 9–21 under 35
U.S.C. § 103(a) in view of the combined teachings of D'Errico 861, D'Errico
848, and Toyama is AFFIRMED.
FURTHER ORDERED that the time for taking further action is
not extendable under the provisions of 37 C.F.R. § 1.136(a)(2006).
AFFIRMED

enc: Toyama EP 1 281 690 A1, published 5 February 2003.

reference against D'Errico's 450 application, having been published on 5
February 2003. We shall not exalt form over substance by insisting that the
analysis rest on the EP disclosure.
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