Ex Parte Kuckelkorn et al

Patent Trial and Appeal Board

Oct 31, 2018

12780007 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/780,007 05/14/2010
278 7590
MICHAEL J. STRIKER
Collard & Roe, P.C.
1077 Northern Boulevard
Roslyn, NY 11576
10/31/2018
FIRST NAMED INVENTOR
Thomas Kuckelkorn
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.
4880 9720
EXAMINER
PEYTON, DESMOND C
ART UNIT PAPER NUMBER
3762
MAIL DATE DELIVERY MODE
10/31/2018 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 THOMAS KUCKELKORN, KAMEL SILMY, and
SEBASTIAN DREYER
Appeal2017-006757
Application 12/780,007 1
Technology Center 3700
Before CHARLES N. GREENHUT, BENJAMIN D. M. WOOD, and
NATHAN A. ENGELS, Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 11-14, 37, and 39. Claims 1-10, 15-36, and 38 are canceled. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify SCHOTT AG as the real party in interest. Br. 3.
Appeal2017-006757
Application 12/780,007
ILLUSTRATIVE CLAIM
Appellants' invention relates to a radiation-selective absorber coating
for a parabolic trough collector for use in solar power plants. Spec. 1: 16-17.
Claim 39, reproduced below, is illustrative of the claimed subject matter:
39. A radiation-selective absorber coating (20) for an iron or
steel substrate, said absorber coating (20) consists of a reflective
layer (21) that reflects in the infrared range, at least one barrier
layer (24) arranged below the reflective layer (21 ), at least one
absorption layer (22) arranged above the reflective layer (21 ), an
additional barrier layer (24c) arranged between the at least one
absorption layer (22) and the reflective layer (21 ), an
antireflection layer (23) arranged above the at least one
absorption layer (22), and at least one adhesion-enhancing layer
(25) arranged between the at least one barrier layer (24) and the
reflective layer (21 );
wherein the at least one barrier layer is free of plastic and
has a thickness of 5 nm to 100 nm;
wherein said at least one adhesion-enhancing layer has a
thickness of from 5 nm to 30 nm and consists of molybdenum;
wherein said reflective layer (21) is arranged on the at least
one adhesion-enhancing layer (25), and wherein the reflective
layer (21) consists of gold, silver, platinum or copper;
wherein said at least one barrier layer consists of a layer
(24a) and another layer (24b) arranged on said layer (24a),
wherein said layer (24a) consists of an iron-containing
oxide and is made by thermal oxidation of an outer surface of
said iron or steel substrate;
wherein said another layer (24b) consists of an AlxOy
compound in which xis 1 or 2 and y is 1, 2, or 3, or said another
layer (24b) consists of an Si Ox compound, wherein x is 1 to 2;
and
wherein said at least one adhesion-enhancing layer (25) is
arranged on said another layer (24b ); and
wherein said additional barrier layer (24c) consists of an
AlxOy compound or an Si Ox compound, wherein xis 1 to 2 and
y is 1, 2, or 3.
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Appeal2017-006757
Application 12/780,007
THE REJECTION
Claims 11-14, 37, and 39 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable in view ofKuckelkom et al. (2008/0121225 Al; May 29,
2008) and Varaprasad et al. (US 5,724,187; Mar. 3, 1998).
ANALYSIS
Claim 39 recites a multi-layer "radiation-selective absorber coating
(20)" for an absorber pipe of a parabolic trough solar collector, as depicted
in Appellants' Figure 2 copied below. Kuckelkom also relates to a multi-
layer radiation-selective absorber coating for an absorber pipe of a parabolic
trough solar collector, and Kuckelkom's Figure 2 is also reproduced below.
Figure 2 of Appellants' Specification Figure 2 of Kuckelhom
Each of Appellants' Figure 2 and Kuckelhom's Figure 2 depicts a cross
section of an absorber tube 13 that includes steel tube 1 with absorber
coating 20 applied to the outer side of tube 1. Spec. 15; Kuckelkom ,r,r 40-
41. Absorber layer 20 of each figure includes antireflection layer 23,
absorption layer 22, barrier layer 24c, reflective layer 21, and barrier layers
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Application 12/780,007
24a and 24 b. Spec. 15:20-16:13; Kuckelkom ,r 43. As depicted in
Appellants' Figure 2 but not disclosed in Kuckelkom, Appellants' invention
includes an adhesion-enhancing layer 25 between reflective layer 21 and
barrier layer 24a. Spec. 16:6-11.
Claim 39 recites that the adhesion-enhancing layer 25 "has a thickness
of from 5 nm to 30 nm and consists of molybdenum." In the Examiner's
rejection of claim 39, the Examiner acknowledges that Kuckelkom's
absorber coating 20 does not teach an adhesion-enhancing layer consisting
of molybdenum as claimed, but the Examiner finds Varaprasad teaches
using molybdenum as an adhesion-enhancing layer. Final Act. 2--4 ( citing
Varaprasad col. 22, 11. 8-10, 19-23). The Examiner concludes that claim 39
would have been obvious in view of Kuckelkom modified with the teachings
of Varaprasad to place an adhesion-enhancing layer consisting of
molybdenum2 having a thickness of 5 nm to 30 nm between the barrier layer
and reflective layer in order to strengthen the bond between a refractory
barrier layer and the reflective layer and for enhancing long-term adhesion
2 In the "Response to Arguments" section of the Final Rejection, the
Examiner states that it is unclear whether "consists of molybdenum" in
claim 39 was intended by Appellants to mean "consists substantially of'
molybdenum. Appellants state that "consists of molybdenum" should be
interpreted to mean what a person of ordinary skill would have understood
to be molybdenum. Br. 12-13. We find no actual dispute regarding the
scope of "consisting of molybdenum," however, at least because it is
undisputed that Varaprasad discloses "molybdenum." Varaprasad, col. 22,
11. 19-26. To the extent that the Examiner's statement suggests an
interpretation that might be broader than Appellants' interpretation, we find
no error in the Examiner's rejection in light of Varaprasad's undisputed
disclosure of molybdenum. Cf Ans. 8 (responding to Appellants' arguments
regarding claim interpretation by recognizing that Varaprasad discloses an
adhesion promoter "consisting of molybdenum").
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Appeal2017-006757
Application 12/780,007
of the layer of reflective material to the surface of the substrate. Final Act.
2--4 ( citing Varaprasad col. 22, 11. 8-10, 19-23)
Appellants argue the Examiner's rejection does not establish prima
facie obviousness because, according to Appellants, a person of ordinary
skill would not have looked to Varaprasad's teachings to modify
Kuckelkom. Br. 14--25. Appellants argue that although it might have been
obvious to a person of ordinary skill that an adhesive material suitable for
solar-energy applications would also be effective for bonding layers in
Varaprasad's rearview-mirror application, Appellants argue a person of
ordinary skill would not consult V araprasad' s teachings regarding rearview
mirrors when considering solar-energy applications. As argued by
Appellants, rearview mirrors do not experience the high operating
temperatures (between 300QC and 500QC), thermal shock, and diffusion
relevant to parabolic trough solar-energy generation. Br. 14--17. Further,
Appellants argue the physical and chemical properties of the vacuum-
deposited SiOx or AlxOy substrate layer in Kuckelkom are different than the
smooth glass substrates used at ambient temperatures as described in
Varaprasad, among other differences. Br. 16-17.
We disagree with Appellants and agree with the Examiner that the
subject matter of claim 39 would have been obvious in view of the
combination of Kuckelkom and Varaprasad. As cited by the Examiner,
Varaprasad expressly suggests using a thin film of molybdenum as an
adhesion promoter between a reflective material such as silver and a
substrate. Varaprasad col. 22, 11. 4--26. Even though the rearview mirrors
described in Varaprasad differ in many respects to the solar-energy
applications described in Appellants' Specification and in Kuckelkom, the
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Application 12/780,007
invention described in Varaprasad does not limit or materially detract from
the fact that Varaprasad teaches use of a thin layer of molybdenum as an
adhesion promoter. See EWP Corp. v. Reliance Universal Inc., 755 F.2d
898, 907 (Fed. Cir. 1985) ("A reference must be considered for everything
that it teaches by way of technology and is not limited to the particular
invention it is describing and attempting to protect."); cf Br. 18 ("an
argument that contends that Varaprasad, et al, is non-analogous art has not
been presented"). Moreover, the Examiner cites Varaprasad as teaching the
use of a thin layer of molybdenum as an adhesion-enhancing layer to
strengthen the bond between a refractory barrier layer and the reflective
layer and for enhancing long-term adhesion of the layer of reflective
material to the surface of the substrate (see Ans. 10 ( citing Varaprasad col.
22, 11. 8-10, 19-23)).
Appellants additionally argue that unexpected results from the use of
molybdenum overcome the Examiner's conclusion of obviousness. Br. 25-
29. Among other things, Appellants cite a December 1 7, 2013 Declaration
of Facts Filed Under 37 C.F.R. 1.132 to argue that Appellants' performed
experiments to show that molybdenum performed "unexpectedly better"
than alumina AlxOy, which Appellants contend Varaprasad lists as an
adhesion promoter equivalent to molybdenum. Br. 26.
Appellants' experimental results compare the claimed invention with
that of Kuckelkom alone. This, without more, does not demonstrate that
there would have been unexpected results were Kuckelkom modified in
view of Varaprasad's teachings regarding molydenum. In fact, Appellants'
Declaration states that "[t]he modification of the selective absorber coating
of Kuckelkom, et al, by introducing an additional Mo bonding layer between
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Application 12/780,007
the Si02 barrier layer and the Ag IR-mirror layer provides very good
improvement," but that and the other facts presented in the Declaration do
not undermine the Examiner's conclusion of obviousness. To the contrary,
even if molybdenum is significantly better than the prior art, including the
other adhesion promoters identified by V araprasad, the fact remains that the
modification of Kuckelkom by adding a thin layer of molybdenum does
what Varaprasad predicted-the molybdenum promotes adhesion. See KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007) (explaining that the
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results).
Accordingly, having considered the Examiner's rejection of claim 39
in light of each of Appellants' arguments and the evidence of record, we
disagree with Appellants and agree with the Examiner's findings and
conclusions. We sustain the Examiner's rejection of independent claim 3 9,
as well as the Examiner's rejection of claims 11-14 and 1 7, which
Appellants do not argue separately. Br. 10 ("Claims 11 to 14 and 37 stand
or fall together with claim 39.").
DECISION
We affirm the Examiner's rejection of claims 11-14, 37, and 39.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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