Ex Parte Iosue

Board of Patent Appeals and Interferences

Jul 28, 2008

10765538 (B.P.A.I. Jul. 28, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL JUDE IOSUE
____________

Appeal 2008-2838
Application 10/765,538
Technology Center 2800
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Decided: July 28, 2008
____________

Before EDWARD C. KIMLIN, TERRY J. OWENS, and
JEFFREY T. SMITH, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final of rejection claims 16-19. Claim 16 is
illustrative;
16. A method of making an image intensifier tube, said method including
the steps of:
providing an annular tube body;

providing a microchannel plate disposed within said tube body;

Appeal 2008-2838
Application 10/765,538

providing an electrical contact structure between said tube body
and said microchannel plate;

providing a yieldably deformable and axially-variable sealing
structure sealingly uniting the tube body with a window member, said
window member carrying a photocathode; and

yielding said axially-variable sealing structure while
maintaining a selected fine-dimension spacing between the photocathode
and microchannel plate.

The Examiner relies upon the following references in the rejection of
the appealed claims;

de Groot 5,338,927 Aug. 16, 1994
Wheeler 5,493,111 Feb. 20, 1996

Appellant’s claimed invention is directed to a method of making an
image intensifier tube which comprises, inter alia, providing a yieldably
deformable and axially-variable sealing structure which seals the tube body
with a window member. According to Appellant’s Specification, the seal
material may be indium metal which undergoes a cold flow (see page 13 of
Specification).
Appealed claims 16 and 19 stand rejected under § 35 U.S.C. 102(b) as
being anticipated by Wheeler. Claim 17 and 18 stand rejected under
§ 35 U.S.C. 103(a) as being unpatentable over Wheeler in view of de Groot.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we agree with the Examiner that the claimed subject
matter is unpatentable over the cited prior art. Accordingly, we will sustain
the Examiner’s rejections.
We consider first the Examiner’s §102 rejection of claims 16 and 19
over Wheeler. Appellant does not dispute the Examiner’s factual
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Application 10/765,538

determination that Wheeler, like Appellant, describes a method of making an
image intensifier tube comprising the steps of providing an annular body,
providing a microchannel plate disposed within the tube body, providing an
electrical contact structure between the tube body and the microchannel
plate, and providing a sealing structure which sealingly unites the tube body
with the window member that carries a photocathode.
The principal argument advanced by Appellant is that Wheeler does
not describe the presently claimed yieldable deformable and axially-variable
sealing structure. Appellant, citing a dictionary definition of “deformable”
as a material property meaning deformation upon application of force or
stress, submits that seal 52 of Wheeler, a “braze flange member”, is not
deformable. Appellant sets forth that “to braze is defined as using ‘solder
with a high melting point’” and, therefore, the Wheeler seal is not
deformable (page 10 of principal Br., last paragraph). Appellant poses the
question “ in the present method claim can the process that includes
deformation meaning by stress or force be the same method as to braze one
component with another component?”, and Appellant maintains that “ the
two methods are not identical as taught within the specification of the
present application” (page 4 of Reply Br., third paragraph).
We are not persuaded by Appellant’s argument because it does not
properly focus upon the pertinent disclosure of Wheeler. As acknowledged
by Appellant, Wheeler provides the following relevant disclosure:
The window 16 is sealed into flange 52 with
indium or similar sealed material 52'.
Flange member 52 is braised unto the
housing member 50 at step portion 72.
(col. 7, ll. 65-col. 8, l. 1).

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Application 10/765,538

Hence, it can be seen that the braising emphasized by Appellant takes
place between flange member 52 and housing member 50, and not at the
location cited by the Examiner, namely, the indium seal between window 16
and flange 52. Wheeler does not disclose that indium, Appellant’s seal
material, is brazed onto the flange. As set forth by the Examiner,
[t]he Wheeler reference also teaches sealing the
window 16 and the flange 52 with indium or similar seal
material 52', [and] [t]he Wheeler reference and the
Applicant both utilize the same sealing indium material
for uniting the tube body with a window member, thus
the Examiner interprets that the indium sealing material
of the Wheeler reference exhibits the characteristics of
yieldably deformable and axially-variable as Claimed
[sic] by the Applicant (paragraph bridging pages 7-8 of
Ans.).

Consequently, since there is no dispute that both Appellant and Wheeler
employ the same material, indium, to seal the window member, it is
reasonable to conclude that the indium seals of Appellant and Wheeler
exhibit essentially the same property, namely, yieldably deformable and
axially-variable. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re
Best, 562 F.2d 1252, 1255 (CCPA 1977).
Turning to the Examiner’s § 103 rejection of claims 17 and 18 over
Wheeler in view of de Groot, we concur with the Examiner that it would
have been obvious for one of ordinary skill in the art to “utilize the fine-
dimension spacing structure of de Groot for the image intensifier tube of
Wheeler in order to prevent changes in the distance between the
photocathode and the microchannel and thus maintain a precise distance
between the photocathode and the microchannel plate during the operating
lifetime of the image intensifier tube” (page 6 of Ans., second paragraph.).
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Application 10/765,538

We also agree with the Examiner that it would have been obvious for the
skilled artisan to make the spacing structure integral with the photocathode.
de Groot’s exemplary disclosure that the fine-dimension spacing structure,
beads, may be fixed integrally with the microchannel plate would have
suggested that the beads may also be integrally fixed to the adjacent, spaced
surface of the photocathode. We do not subscribe to Appellant’s argument
that this exemplary disclosure of de Groot qualifies as a teaching away of
fixing the beads to the photocathode surface. In our view, one of ordinary
skill in the art would have found it obvious to integrally fix the beads to
either of the two surfaces which the beads function to separate. We note that
Appellant presents no argument based upon unexpected results attributed to
the features of claims 17 and 18.
In conclusion, based on the foregoing, the Examiner’s decision
rejecting the appealed claims is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR §1.136(a)(1)(iv).

AFFIRMED

tc

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