Ex Parte FriedlDownload PDFPatent Trial and Appeal BoardDec 10, 201312079891 (P.T.A.B. Dec. 10, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/079,891 03/28/2008 Wolfgang Friedl HG 53 2818 7590 12/10/2013 KLAUS BACH 4407 Twin Oaks Dr Murrysville, PA 15668 EXAMINER ADAMOS, THEODORE V ART UNIT PAPER NUMBER 3635 MAIL DATE DELIVERY MODE 12/10/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte WOLFGANG FRIEDL ____________________ Appeal 2011-004665 Application 12/079,891 Technology Center 3600 ____________________ Before: JAMES P. CALVE, WILLIAM A. CAPP, and BEVERLY M. BUNTING, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from the rejection of claims 1-8. App. Br. 2. Claims 9-11 are withdrawn. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2011-004665 Application 12/079,891 2 CLAIMED SUBJECT MATTER Claim 1, the sole independent claim on appeal, is reproduced below. 1. A vacuum insulated glass building element, comprising a first glass pane (1) and a second glass pane (2), spacer elements (4) arranged between the glass panes (1, 2) so as to support the glass panes (1, 2) in spaced relationship relative to each other, first and second metal foil strips (5) connected to the respective first and second glass panes (1, 2) at the edges thereof in a vacuum-tight manner, said first and second metal foil strips (5) having edge areas extending beyond the circumferential edges of the respective glass panes (1, 2) to which they are welded and being joined at their outwardly projecting edge areas by a circumferential vacuum-tight weld seam (7) so as to enclose between them a thin sealed intermediate space (3) which is evacuated. REJECTIONS Claims 1, 4, and 7 are rejected under 35 U.S.C. § 102(b) as anticipated by Bächli (US 5,009,218; iss. Apr. 23, 1991). Claim 2 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Bächli and Forman (US 3,360,849; iss. Jan. 2, 1968). Claims 3, 5, and 6 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Bächli. Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Bächli and Thomsen (US 6,632,491 B1; iss. Oct. 14, 2003). ANALYSIS Claims 1, 4, and 7 as anticipated by Bächli Appellant argues claims 1, 4, and 7 as a group. App. Br. 4-9. We select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 4 and 7 stand or fall with claim 1. Appeal 2011-004665 Application 12/079,891 3 The Examiner found that Bächli discloses a vacuum insulated glass building element, as claimed, including first and second metal strips with extending edge areas that are joined by a vacuum-tight weld seal. Ans. 5 (citing Figure 10). The Examiner interpreted the term “foil” as a thin, flexible sheet of metal and reasoned that Bächli discloses thin, flexible foils in Figure 10. Ans. 9. Appellant argues that the heat insulating element shown in Figure 10 of Bächli does not disclose metal foil strips but rather pre-formed metal bodies or frames that Bächli describes as “metal shapes.” App. Br. 4-5; see Reply Br. 2. Appellant also argues that Bächli uses the term foil to describe an element in Figures 8 and 9 that is represented simply by a line whereas the metal shape structure 11 is shown by a thick wall of several millimeters and a hatched cross-sectional area. App. Br. 5, 7-8. Appellant’s arguments are not persuasive for several reasons. First, to the extent that Appellant is arguing that Bächli does not disclose “metal foil strips” because Bächli describes the elements as “metal shapes,” the test for anticipation is not whether a references discloses a claimed feature with the same terminology. See In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009) (to anticipate, a prior art reference must disclose every claimed element in a single reference arranged as in the claim but need not satisfy an ipsissimis verbis test). Second, the Examiner’s interpretation of “foil” to mean a thin, flexible sheet is within the broadest reasonable interpretation of that term and is consistent with Appellant’s Specification and the language of claim 1, which merely recites “first and second metal foil strips.” Appellant’s Specification discloses that a metal foil strip 5 is attached in a vacuum-tight manner at the edge of each glass pane 1, 2 by welding of a glass solder or Appeal 2011-004665 Application 12/079,891 4 ultrasound welding. Spec. 8, ll. 19-25; see also Spec. 4, ll. 26-32 (first and second metal foil strips are connected to edge areas of glass panes and the areas of those foil strips that project beyond edges of the glass panes are welded together); App. Br. 2 (citing page 4, lines 26-29 and page 8, lines 19- 25 of the Specification as support for the claimed first and second foil strips). Appellant has not pointed to a lexicographic definition of “foil” nor has Appellant provided evidence of what a skilled artisan would understand the term “foil” to mean. Appellant’s Specification does not disclose any features of the “foil” that distinguish over Bächli’s metal shapes even were we permitted to read such features from the Specification into claim 1. We also agree with the Examiner that the drawings of Bächli cannot be relied upon to disclose precise proportions or sizes in the absence of any disclosure of such features in the specification of Bächli. See Hockerson-Halberstadt, Inc. v. Avia Gp. Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000) (“[I]t is well established that patent drawings do not define the precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue.”) (citations omitted). Appellant further argues that the legs of the shaped metal components 11 of Bächli are bent inwardly in contrast to the present invention where the metal foil strips project outwardly from edges of the glass plates to which they are attached so that the projecting sections of the metal foil strips are easily and securely joined by welding. App. Br. 5-7. This argument is not commensurate with the scope of claim 1 and therefore is not persuasive. Claim 1 recites “first and second metal foil strips . . . being joined at their outwardly projecting edge areas by a . . . weld seam.” Bächli discloses that the edges of metal shapes 11 project outwardly from wall elements 1 and are Appeal 2011-004665 Application 12/079,891 5 joined together by solder, which the Examiner reasonably interpreted as a weld seam in view of Appellant’s disclosure of metal foils connected by melt welding with glass solder. Ans. 5; Spec. 5, ll. 30-32; Spec. 8, ll. 23-25. In view of the foregoing, we sustain the rejection of claims 1, 4 and 7. Obviousness rejections of claims 2, 3, 5, 6, and 8 Appellant argues that claims 2, 3, 5, 6, and 8 are patentable because they depend from claim 1. App. Br. 8-9. Because we sustain the rejection of claim 1, this argument is not persuasive and we sustain the rejections of claims 2, 3, 5, 6, and 8. DECISION We AFFIRM the rejections of claims 1-8. 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) (2011). AFFIRMED mls Copy with citationCopy as parenthetical citation