Ex Parte Medwick et al

Board of Patent Appeals and Interferences

Apr 20, 2006

09945892 (B.P.A.I. Apr. 20, 2006)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte PAUL A. MEDWICK,
RUSSELL C. CRISS, Dec’d,
DENVRA CRISS, Legal Rep.,
MEHRAN ARBAB,
and
JAMES J. FINLEY
Appeal No. 2006-1002
Application No. 09/945,892
______________
ON BRIEF
_______________
Before KIMLIN, WALTZ and FRANKLIN, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 29-39,
41-44, 50-57, 59, 62-64, 67 and 68. Claim 29 is illustrative:
29. A solar control coated article, comprising:
a substrate having a surface;
a first antireflective layer having a thickness
ranging from 272 D to 332 D over the surface of the
substrate;
a first infrared reflective layer having a
thickness ranging from 80 D to 269 D over the first
Appeal No. 2006-1002
Application No. 09/945,892
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antireflective layer;
a first primer layer having a thickness ranging
from 8 D to 30 D and consisting essentially of
titanium over the first infrared reflective layer;
a second antireflective layer having a thickness
ranging from 698 D to 865 D over the first primer
layer;
a second infrared reflective layer having a
thickness ranging from 180 D to 290 D over the second
antireflective layer;
a second primer film having a thickness ranging
from 8 D to 30 D and consisting essentially of
titanium over the second infrared reflective layer; and
a third antireflective layer having a thickness
ranging from 60 D to 273 D over the second primer
layer, such that the coated article in an insulated
unit defined as a test unit provides for the test unit
to have a luminous transmission of less than 70%, a
solar heat gain coefficient of less than about 0.38 and
a ratio of luminous transmittance to solar heat gain
coefficient of greater than about 1.85, the test unit
for determining the luminous transmission, the shading
coefficient, the solar heat gain coefficient, and the
ratio of luminous transmittance to solar heat gain
coefficient having a first clear float glass sheet and
a second clear float glass sheet, each of the glass
sheets having a nominal thickness of 6 mm and a first
major surface and an opposite major surface defined as
a second major surface, the second major surfaces of
the glass sheets face one another and are at a nominal
spacing of 0.5 inch (1.27 centimeters) from one
another, the solar control coating is over the second
major surface of the first sheet and the first major
surface of the first sheet is the outboard surface,
edges of the first and second glass sheets are sealed
to provide a chamber between the glass sheets, the
chamber having a nominal gas fill of air or argon.
Appeal No. 2006-1002
Application No. 09/945,892
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The examiner relies upon the following references as
evidence of obviousness:
Yudenfriend 4,489,134 Dec. 18, 1984
Proscia 5,248,545 Sep. 28, 1993
Zagdoun et al. (Zagdoun) 5,776,603 Jul. 7, 1998
Hartig et al. (Hartig) 5,800,933 Sep. 1, 1998
Arbab et al. (Arbab) 5,821,001 Oct. 13, 1998
Baratuci et al. (Baratuci) 5,851,609 Dec. 22, 1998
Finley 5,902,505 May 11, 1999
Boire et al. (Boire) 6,045,896 Apr. 4, 2000
Appellants’ claimed invention is directed to a solar
controlled coated article comprising a substrate containing
first, second and third antireflective layers, first and second
infrared reflective layers, and first and second primer layers of
titanium over the first and second infrared reflective layers,
respectively. The coated article in an insulated test unit
provides for the test unit to have the recited luminous
transmission, solar heat gain coefficient and ratio of luminous
transmittance to solar heat gain coefficient. Also, the claimed
antireflective, infrared reflective and primer layers have
thicknesses within the recited ranges. The coated article finds
utility in windows for buildings or insulating glass units.
The appealed claims stand rejected under 35 U.S.C. § 103(a)
as follows:
(a) claims 29-38, 41-44, 51-54, 56, 57, 59, 62-64, 67
and 68 over Finley in view of Zagdoun and Baratuci,
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(b) claims 39 and 55 over the stated combination of
references further in view of Arbab,
(c) claims 39 and 55 over the stated combination of
references further in view of Hartig,
(d) claim 50 over the stated combination of references
further in view of Yudenfriend,
(e) claims 29-39, 41-44, 51-57, 59, 62-64, 67 and 68
over Boire in view of Arbab, Zagdoun and Baratuci, and,
(f) claim 50 over the references cited in (e) above
further in view of Yudenfriend.
Appellants have not submitted separate substantive arguments
for the various groups of claims separately rejected by the
examiner, but rely upon arguments made for claim 29.
Accordingly, all the appealed claims stand or fall together with
claim 29.
We have thoroughly reviewed each of appellants’ arguments
for patentability. However, we are in complete agreement with
the examiner’s reasoned analysis and application of the prior
art, as well as his cogent disposition of the arguments raised by
appellants. Accordingly, we will adopt the examiner’s reasoning
as our own in sustaining the rejections of record, and we add the
following for emphasis only.
Appeal No. 2006-1002
Application No. 09/945,892
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We consider first the examiner’s rejection of claim 29 over
Finley in view of Zagdoun and Baratuci. Appellants do not
dispute the examiner’s factual determination that Finley
discloses a solar control article that, like appellants’ coated
article, comprises a first antireflection layer of tin/zinc
oxide, a first buffer layer, an infrared-reflective layer of
silver metal, a second buffer layer, a second anti-reflective
layer, a third buffer layer and a second infrared reflective
layer.
The examiner recognizes that the layers of Finley do not
have thicknesses that fall within the claimed ranges. However,
as noted by the examiner, Finley expressly teaches that “[t]he
thicknesses of the various layers are limited primarily by the
desired optical properties such as transmittance” (column 7,
lines 39-41). Accordingly, we fully concur with the examiner
that one of ordinary skill in the art would have found it obvious
to modify the thicknesses of Finley’s antireflective, infrared
reflective and primer layers such that they fall within the
claimed ranges in order to achieve a particular level of optical
properties, such as transmittance. It is well settled that where
patentability is predicated upon a change in a condition of a
prior art article or composition, such as a change in size or
Appeal No. 2006-1002
Application No. 09/945,892
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concentration, the burden is on the applicant to establish with
objective evidence that the change is critical, i.e., it leads to
a new, unexpected result. In re Woodruff, 919 F.2d 1575, 1578,
16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454,
456, 105 USPQ 233, 235 (CCPA 1955).
In the present case, as emphasized by the examiner,
appellants have proffered no objective evidence which
demonstrates that the combination of antireflective, infrared
reflective and primer layers having thicknesses within the
claimed ranges produces results that would have been considered
unexpected by one of ordinary skill in the art in light of the
state of the prior art. Bare assertions of beneficial results
are no substitute for objective evidence of unexpected results.
In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA
1974). We observe that appellants do not challenge the
examiner’s legal conclusion that “[i]t would have been obvious to
one having ordinary skill in the art at the time the invention
was made to use the glass article of Finley in a dual glass plate
arrangement with a gas-filled space, as disclosed by Zagdoun,
because this article possesses a reinforced thermal insulation
property desirable in some architectural applications” (page 5 of
answer, first paragraph).
Appeal No. 2006-1002
Application No. 09/945,892
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Concerning the separate rejection of claim 29 with Boire as
the primary reference, the issue on appeal is the same, namely,
the antireflective, infrared reflective and primer layers of
Boire have thicknesses outside the claimed ranges. However,
for the reasons set forth above, we find that it would have been
obvious for one of ordinary skill in the art to modify the
thicknesses of the relevant layers of Boire in order to achieve
the desired optical properties. We note again that appellants
base no arguments on objective evidence of nonobviousness which
establishes that the claimed thicknesses for the various layers
produces unexpected results. Appellants maintain that “it is not
simply the manipulation of a single layer of a coating but rather
the manipulation of several layers of a coating with the
understanding that the layers interact with each other to provide
the desired overall performance” (sentence bridging pages 17 and
18 of brief). However, as discussed above, it was known in the
art that the thicknesses of the layers can be altered to obtain
the desired levels of luminous transmission, solar heat gain
coefficient, etc. Indeed, appellants have not provided a
convincing rationale why the combination of the claimed
thicknesses for the three layers would have been nonobvious to
one of ordinary skill in the art.
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Application No. 09/945,892
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In conclusion, based on the foregoing and the reasons well-
stated by the examiner, 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).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
THOMAS A. WALTZ ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
BEVERLY A. FRANKLIN )
Administrative Patent Judge )
ECK:hh
Appeal No. 2006-1002
Application No. 09/945,892
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KENNETH J. STACHEL, ESQ.
PPG. INDUS. INC.
ONE PPG PLACE
PITTSBURGH, PA 15272