Ex Parte Dejneka et alDownload PDFPatent Trials and Appeals BoardMay 9, 201913112302 - (D) (P.T.A.B. May. 9, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/112,302 05/20/2011 22928 7590 05/13/2019 CORNING INCORPORATED SP-TI-3-1 CORNING, NY 14831 FIRST NAMED INVENTOR Matthew J. Dejneka UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. ADP-284 US (SPl 1-096) 7202 EXAMINER SZEWCZYK, CYNTHIA ART UNIT PAPER NUMBER 1741 NOTIFICATION DATE DELIVERY MODE 05/13/2019 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): usdocket@corning.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHEW J. DEJNEKA, BENJAMIN Z. HANSON, and THOMAS D. KETCHAM Appeal2017-008009 Application 13/112,302 Technology Center 1700 Before WESLEY B. DERRICK, SHELDON M. McGEE, and JANEE. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellants1 request our review under 35 U.S.C. § 134(a) of the Examiner's decision to finally reject claims 18-31.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We REVERSE. STATEMENT OF THE CASE Appellants' invention generally relates to alumina isopipes that can be used to produce glass sheets containing tin by a fusion process, without 1 Appellants identify Coming Incorporated as the real party in interest. Appeal Brief filed July 22, 2016 ("App. Br."), 4. 2 We heard oral arguments from Appellants' representative on April 30, 2019. Appeal2017-008009 Application 13/112,302 generating unacceptable levels of tin-containing defects in the glass sheets' fusion line. Spec. ,i 2; Abst. Claim 18, the sole pending independent claim, illustrates the subject matter on appeal and is reproduced below with emphasis added to highlight contested subject matter: 18. An isopipe comprising a body having a configuration adapted for use in a fusion process, said body comprising an alumina refractory that forms at least a part of at least one surface of the isopipe which comes into contact with molten glass during use of the isopipe, wherein: (i) the alumina refractory is a refractory material which comprises one or more Af2Q3 phases which in combination are at least 90 volume percent of the refractory material including the refractory material's porosity; (ii) the tin concentration in the alumina refractory on an oxide basis is less than or equal to 1.0 weight percent; and (iii) the sum of the titanium, zirconium, and hafnium concentrations in the alumina refractory on an oxide basis is less than or equal to 1. 5 weight percent. App. Br. 23 (Claims Appendix) ( emphasis added). The Examiner sets forth the following rejections in the Final Office Action entered February 16, 2016 ("Final Act."), and maintains the rejections in the Examiner's Answer entered March 14, 2017 ("Ans."): I. Claims 18 and 20-28 under 35 U.S.C. § 103(a) as unpatentable over Kerko3 in view of Mizuno4 and Dockerty; 5 and II. Claims 19 and 29-31 under 35 U.S.C. § 103(a) as unpatentable over Kerko in view of Mizuno, Dockerty, and Burdette. 6 3 Kerko et al., US 4,018,965, issued April 19, 1977 ("Kerko"). 4 Mizuno et al., US 6,159,885, issued December 12, 2000 ("Mizuno"). 5 Dockerty, US 3,682,609, issued August 8, 1972 ("Dockerty"). 6 Burdette et al., US 2008/0131651 Al, published June 5, 2008 ("Burdette"). 2 Appeal2017-008009 Application 13/112,302 DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellants' contentions, we reverse the Examiner's rejections of claims 18-3 1 under 3 5 U.S. C. § 10 3 (a) for the reasons set forth in the Appeal Brief and below. The Examiner finds that Kerko discloses a forming body having a configuration adapted for use in a fusion process, which, according to the Examiner, one of ordinary skill in art would inherently understand to be the same as an isopipe. Final Act. 2 ( citing Kerko col. 11, 11. 39-56). The Examiner finds that Kerko discloses that the forming body or isopipe may be composed of a dense alumina material, but "is silent to the composition of the dense alumina." Final Act. 2 (citing Kerko col. 11, 11. 55-58). The Examiner relies on Mizuno to address this feature, and finds that Mizuno discloses a dense alumina refractory having a composition that meets the limitations of claim 1, and exhibits superior strength, corrosion resistance, and high chemical inertness. Final Act. 2-3 ( citing Mizuno col. 1, 11. 4-6, col. 2, 11. 6-7, col. 3, 11. 3, 12-13, Table l; Ans. 6 (citing Mizuno col. 1, 11. 13-15, 36-38). The Examiner concludes that "[i]t would have been obvious to one of ordinary skill in the art that [the] dense alumina of Mizuno could have been used as the dense alumina of Kerko" because Mizuno teaches that the dense alumina has the advantages of corrosion resistance and high chemical inertness, and also has high strength, which would desirably extend the life of Kerko's isopipe. Final Act. 2-3; Ans. 6. On this appeal record, however, the Examiner does not articulate a sufficient reason having rational underpinning to support a conclusion that one of ordinary skill in the art would have combined the relied-upon 3 Appeal2017-008009 Application 13/112,302 disclosures of Kerko and Mizuno in the manner required by independent claim 18, for reasons expressed by Appellants and discussed below. Kerko discloses glass compositions suitable for manufacturing glass sheets by direct drawing using a downdraw sheet forming apparatus. Col. 1, 11. 7-1 O; col. 11, 11. 39-42. Kerko discloses that the downdraw forming member of the sheet forming apparatus, which is referred to as a fusion pipe or trough (isopipe ), may be "composed of an alumina-containing refractory ceramic such as sillimanite or dense alumina." Col. 11, 11. 56-59. Mizuno discloses an alumina-based sintered material having a porosity of not more than 3%, and a flexural strength of not less than 300 mPa "determined at ordinary temperature (23°C)." Col. 1, 11. 4-13; col. 3, 11. 54-59; col. 6, 11. 31-33. Mizuno discloses that the alumina-based sintered material "can be used to make ceramic parts for semiconductor fabrication equipment such as a wafer chuck, a conveyor jig, a polishing plate, various chamber parts and a wafer board, or to make ceramic parts for ordinary industrial machines." Col. 1, 11. 4-13. Mizuno discloses that the alumina- based sintered material can also be used to produce ceramic parts requiring corrosion resistance, such as a precision working jig for producing a magnetic head. Col. 1, 11. 13-17. In the "Background of the Invention" section, Mizuno discloses that high purity alumina has high chemical inertness, and is therefore "often used for making parts for semiconductor fabrication equipment." Col. 1, 11. 3 6-41. The Examiner does not provide evidence, or sound technical reasoning, to support the Examiner's implicit assertion that corrosion resistance as exhibited by Mizuno's alumina-based sintered material would be a useful property for a downdraw forming member or isopipe used to 4 Appeal2017-008009 Application 13/112,302 manufacture glass sheets as disclosed in Kerko. Rather, Mizuno discloses that this property is beneficial for a precision working jig used to produce a magnetic head, an apparatus that differs significantly in both structure and function from a downdraw forming member or isopipe as disclosed in Kerko. And as Appellants point out (Reply Br. 7), Mizuno indicates in the "Background of the Invention" section that chemical inertness is a property of all high purity alumina materials, rather than a property unique or specific to the particular alumina material of Mizuno' s invention. Therefore, contrary to the Examiner's assertion, Mizuno' s disclosure of the chemical inertness of high purity alumina materials would not have led one of ordinary skill in the art to choose Mizuno' s particular alumina material over other known aluminas to form a downdraw forming member or isopipe as disclosed in Kerko. Furthermore, as Appellants correctly argue (Reply Br. 3), the Examiner does not provide any evidence to support the Examiner's assertion that the high flexural strength of Mizuno's alumina-based sintered material would extend the life of Kerko' s downdraw forming member or isopipe if Mizuno' s material were used to form the isopipe. Appellants also argue that the high flexural strength disclosed in Mizuno is "irrelevant to the strength levels needed for an isopipe and thus a PHOSITA [person having ordinary skill in the art] would have had no reason to combine Mizuno with Kerko." App. Br. 15. In support of this argument, Appellants rely on the Declaration of Steven R. Burdette filed July 22, 2016. The Burdette Declaration indicates that room temperature strength-as disclosed in Mizuno-has not been an issue for isopipes used in fusion processes, irrespective of the 5 Appeal2017-008009 Application 13/112,302 material from which the isopipes are made, which has been well-known by scientists and engineers working on fusion processes "since at least 2005 and certainly since the 2010-2011 time period when this application and its priority application were filed." Burdette Dec. ,i 4. The Declaration describes an analysis performed using modeling software of the stresses experienced by an isopipe at room temperature to "illustrate why room temperature strength has not been an issue for isopipes." Burdette Dec. ,i,i 5-7. The results of the analysis showed that the highest stress experienced by an isopipe was 1.06 MPa, while the lowest flexural strength value reported in Mizuno was 180 MPa for the alumina material of Comparative Example 2, which the Declaration indicates "is more than 100 times greater than the highest stress level a skilled person would expect an isopipe to experience at room temperature and thus such a person would not consider the strength of Mizuno' s refractory as relevant to an isopipe." Burdette Dec. ,i 8. The Examiner responds that the "Burdette declaration only addresses the strength of the material of Mizuno at room temperatures wherein the combination of Kerko and Mizuno would be operating at molten glass temperatures. Therefore the Burdette declaration is irrelevant to the combination of Kerko and Mizuno and is not commensurate in scope with the claims." Ans. 7. Appellants correctly point out the flaw in the Examiner's logic in the Reply Brief. Reply Br. 8-9. Specifically, if the Burdette Declaration is irrelevant to the proposed combination of Kerko and Mizuno because an isopipe resulting from the combination "would be operating at molten glass temperatures," then the flexural strength of the sintered alumina disclosed in 6 Appeal2017-008009 Application 13/112,302 Mizuno would also be irrelevant to the proposed combination of Kerko and Mizuno because Mizuno discloses determining the flexural strength "at ordinary temperature (23°C)." As Appellants correctly argue, "[r]oom temperature strength, the only strength discussed in Mizuno, cannot be a reason-to-combine Mizuno with Kerko and at the same time be irrelevant when discussed in the Burdette Declaration." Reply Br. 8-9. Accordingly, on this appeal record, the Examiner does not provide a sufficient reason having rational underpinning to support a conclusion that one of ordinary skill in the art would have combined the relied-upon disclosures of Mizuno with Kerko to produce an isopipe as recited in independent claim 18. KSRint'l Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) ("[A] patent composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known in the prior art."); Belden Inc. v. Berk-TekLLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015) ("[O]bviousness concerns whether a skilled artisan not only could have made but would have been motivated to make the combinations or modifications of the prior art to arrive at the claimed invention."). We accordingly do not sustain the Examiner's rejection of claim 18, and of claims 19-31, which each depend from claim 18, under 35 U.S.C. § 103(a). DECISION We reverse the Examiner's rejections of claims 18-31 under 35 U.S.C. § 103(a). REVERSED 7 Copy with citationCopy as parenthetical citation