Ex parte Emken

Board of Patent Appeals and Interferences

Aug 30, 2000

08206973 (B.P.A.I. Aug. 30, 2000)

Application for patent filed March 7, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 25
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte MICHAEL R. EMKEN
________________
Appeal No. 1996-1896
Application No. 08/206,9731
________________
ON BRIEF
________________
Before GARRIS, PAK, and KRATZ, Administrative Patent Judges.
PAK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s
refusal to allow claims 1 through 16 and 18 which are all of
the claims pending in the application.
Appeal No. 1996-1896
Application No. 08/206,973
2
Claim 1 is representative of the subject matter on appeal
and reads as follows:
1. A method of controlling the rate of deposition of
pyrocarbon onto a substrate while it is being levitated in an
enclosure along with a fluidized bed of particles in order to
produce a precise thickness of deposit of pyrocarbon of
uniform crystalline properties, which method comprises
establishing a bed of particles in fluidized condition in
a coating zone within an enclosure along with at least one
substrate to be coated, all of which are levitated by
supplying an upward flow of a gaseous atmosphere which
comprises an inert gas,
heating said bed of particles and said substrate to a
pyrolysis temperature in said coating zone and supplying said
levitating gaseous atmosphere in a form that includes a
mixture of a hydrocarbon component and an inert gas component,
each of which components is supplied to said coating zone at a
certain initial flow rate, such that pyrolysis of said
hydrocarbon occurs causing pyrocarbon to be deposited upon
surfaces of said substrate and upon said particles in said
coating zone,
monitoring either (a) the weight of said fluidized bed,
or (b) the differential pressure between a location within or
below said bed and a location above said be, to determine
changes that occur either in said weight or in said
differential pressure, and
adjusting the amount of said hydrocarbon component being
supplied as a part of said upward coating flow based upon
changes determined to have occurred either in said weight or
in said differential pressure so as to compensate for such
changes and thereby precisely regulate the rate of deposition
of pyrocarbon over time and thereby produce a precise
thickness of pyrocarbon coating of uniform crystalline
Appeal No. 1996-1896
Application No. 08/206,973
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properties upon said surfaces of said substrate during a
coating run lasting for a definite period of time.
As evidence of obviousness, the examiner relies on the
following prior art:
Lester et al. (Lester) 4,329,260 May 11, 1982
Accuntius et al. (Accuntius) 5,284,676 Feb. 8, 1994
(Filed Nov. 18,
1991)
Emken et al. (Emken) 5,328,713 July 12, 1994
(Filed Mar. 16, 1993)
Claims 1 through 7 and 10 through 16 stand rejected under
35 U.S.C. § 103 as unpatentable over Emken alone or in view of
Lester. Claims 1 through 16 and 18 stand rejected under
35 U.S.C. § 103 as unpatentable over Accuntius alone or in
view of Lester.
Upon careful consideration of the opposing arguments and
evidence presented on appeal, we concur with appellant that
the applied prior art fails to establish a prima facie case of
obviousness regarding the claimed subject matter.
Accordingly, we will not sustain any of the examiner’s 35
U.S.C. § 103 rejections for essentially those reasons set
forth in the Brief. We add the following primarily for
emphasis.
Appeal No. 1996-1896
Application No. 08/206,973
4
As required by the appealed claims, Emken and Accuntius
disclose a method of coating pyrocarbon onto a substrate in a
fluidized bed in the presence of particles to obtain a precise
thickness of deposit of pyrocarbon of uniform crystalline
structure and uniform physical properties on the substrate.
See Emken, column 3, lines 15-20 and Accuntius, column 10,
lines 14-20. The examiner finds that the method involves
fluidizing both the particles and the substrate with a
levitating gas comprising an inert gas, heating both the
particles and the substrate to a pyrolysis temperature and
supplying a mixture of a hydrocarbon component as a part of
the levitating gas to produce and deposit pyrocarbon on
surfaces of the substrate and the particles. See Answer,
pages 3-5 and 7-9. The examiner finds that Emken also teaches
monitoring the weight of the fluidized bed to determine the
change in weight over a period of time. See Answer, page 3.
The examiner finds that Accuntius also teaches monitoring the
differential pressure between a location within or below the
bed and a location above the bed to determine the change in
the pressure difference. See Answer, page 7. According to
the examiner (Answer, pages 3 and 7), in response to the
Appeal No. 1996-1896
Application No. 08/206,973
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change in weight or the pressure difference, both Emken and
Accuntius teach adjusting the amount of particles added or
withdrawn to obtain “precise coating characteristics and
thickness”.
The examiner recognizes that both Emken and Accuntius do
not teach adjusting the mixture of hydrocarbon component in
response to the change in weight or the pressure difference.
See Answer, pages 5 and 9. The examiner, however, concludes
that adjusting the mixture of hydrocarbon component in
response to the change in weight or the pressure difference
would have been obvious to one of ordinary skill in the art
either because “[t]he amount of coating gas supplied to a
coating device is a well known ‘cause effective’ variable”,
see Answer, pages 5 and 9, or because Lester “discloses by
varying operating parameters of time, temperature and
particular pyropolymer precursor, the thickness of the
carbonaceous pyropolymer on the surface of the inorganic
support can be adjusted to a predetermined size”, see Answer,
pages 6 and 10.
Although the examiner might have established that there
is a suggestion to adjust the flow rate of hydrocarbon to
Appeal No. 1996-1896
Application No. 08/206,973
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obtain desired coating thicknesses in a coating process, the
examiner has not supplied any evidence that adjusting the
amount of the hydrocarbon component fed to the fluidized bed
is useful for obtaining the claimed product, namely “a precise
thickness of deposit of pyrocarbon of uniform crystalline
structure and uniform physical properties”. The Bokros
declaration (expert declaration) submitted by appellant
indicates that those of ordinary skill in the art believed
that the flow rate of hydrocarbon needs to be maintained at a
constant level to obtain uniform crystalline structure. See
page 3. Emken and Accuntius relied upon by the examiner also
indicate that to obtain a precise thickness of deposit of
pyrocarbon of uniform crystalline structure and uniform
physical properties, it is desirable to maintain the overall
chemical composition at a constant desired value. See, e.g.,
Emken, column 2, lines 1-9 and 24-41, column 3, lines 24-45
and column 4, lines 5-20, and Accuntius, column 1, lines 39-
51. In other words, it is desirable to maintain the flow rate
of hydrocarbon at a constant level to prevent the change in
the overall chemical composition.
Appeal No. 1996-1896
Application No. 08/206,973
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Given these teachings, we conclude that the examiner has
not demonstrated that there is a suggestion of and/or a
reasonable expectation of success in forming “a precise
thickness of deposit of pyrocarbon of uniform crystallin
structure and uniform physical properties” on a substrate by
adjusting the flow rate of the hydrocarbon component in
response to the change in weight or the pressure difference in
a fluidized bed. Accordingly, we reverse the examiner’s
decision rejecting all of the appealed claims under 35 U.S.C.
§ 103 as unpatentable over either Emken or Accuntius alone, or
taken together with Lester.
Appeal No. 1996-1896
Application No. 08/206,973
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The decision of the examiner is reversed.
REVERSED
BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
)
)
CHUNG K. PAK ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
PETER F. KRATZ )
Administrative Patent Judge )
Appeal No. 1996-1896
Application No. 08/206,973
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CP/RWK
MEDTRONIC, INC.
MICHAEL J. JARO MS301
7000 CENTRAL AVENUE N.E.
MINNEAPOLIS, MN 55432