Ex Parte Mulet et al

Patent Trial and Appeal Board

May 8, 2018

13520454 (P.T.A.B. May. 8, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/520,454 07/03/2012 Jean-Philippe Mulet
22850 7590 05/10/2018
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
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.
400686US99PCT 8405
EXAMINER
HON, SOW FUN
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
05/10/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patentdocket@oblon.com
oblonpat@oblon.com
tfarrell@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEAN-PHILIPPE MULET,
BERTRAND CHARPENTIER, PABLO VILATO, and
MICHAEL BOURGEOIS 1
Appeal2017-008450
Application 13/520,454
Technology Center 1700
Before CATHERINE Q. TIMM, JENNIFER R. GUPTA, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
1 The real party in interest is identified as Eurokera S.N.C. of
Chateau-Thierry, France. Appeal Brief, filed December 23, 2016 ("App.
Br."), 1.
Appeal2017-008450
Application 13/520,454
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection2 of
claims 1-5, 7-15, 17-22, 25, and 26. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
CLAIMED SUBJECT MATTER
The claims are directed to the composition of glass-ceramics and
certain parameters of glass-ceramics such as the thermal expansion
coefficient as well as the visual appearance. Spec. 1 :30-2:4, 2:5-6, 31-32. 3
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A display assembly, comprising a glass-ceramic plate
comprising a lithium aluminosilicate and a luminous device
comprising a polychromatic light source, wherein:
an optical transmission of the glass-ceramic plate for a
thickness of 4 mm is between 0 .2 % and 4 % for at least one
wavelength between 400 and 500 nm;
the polychromatic light source has at least one first
emission of nonzero intensity at said wavelength between 400
and 500 nm and at least one second emission at a wavelength of
more than 5 00 nm;
the polychromatic light source is positioned to allow
display through said glass-ceramic plate,
the glass-ceramic plate comprises tin oxide in an amount
by weight of between 0.1%and0.5%,
the glass-ceramic plate comprises vanadium oxide in a
weight content ofbetween <0.01 % and 0.2%,
the glass-ceramic plate comprises As203 in a weight
content of from 0% to 0. 01 %,
2 Final Office Action mailed August 1, 2016 ("Final Act.").
3 Application 13/520,454, Display Assembly Comprising a Glass-Ceramic
Plate. We refer to the "Specification," which we cite as "Spec."
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Application 13/520,454
the glass-ceramic plate comprises at least one reducing
agent,
the glass-ceramic plate comprises between 0.2% and 2.5%
by weight of CaO, and the at least one first emission and the at
least one second emission through the glass-ceramic plate allow
for display of different colors.
App. Br. 15 (Claims Appendix) (emphases added).
REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal are:
Costin
Nakane
Siebers
Spindler
US 2003/0008759 Al
EP 1 465 460 A2
US 2005/0143247 Al
US 2008/0268282 Al
Jan.9,2003
Oct. 6, 2004
Jun.30,2005
Oct. 30, 2008
Wikipedia ("Color"), available at http://en.wikipedia.org/wiki/Color
(printed Jun. 6, 2014)
REJECTIONS
Claims 1-5, 7-15, 17-22, 25, and 26 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Nakane in view of Siebers, as
evidenced by Wikipedia ("Color"). Final Act. 2; Adv. Act. 2. 4
Claim 16 is rejected underpre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Nakane in view of Siebers and Spindler. Final Act. 16.
Claims 23 and 24 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Nakane in view of Siebers and Costin. Final
Act. 17.
4 Advisory Action mailed September 30, 2016 ("Adv. Act.").
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Application 13/520,454
OPINION
We adopt the Examiner's findings pertinent to the issues raised by
Appellants and incorporate the fact findings as set forth in the Final Office
Action, Advisory Action, and Examiner's Answer. We add the following
for emphasis.
Appellants first argue that N akane does not teach or suggest a
glass-ceramic having "tin oxide in an amount by weight of between 0.1 %
and 0.5%" as recited in claim 15 because Nakane describes a composition at
paragraph 22 in which tin oxide is absent. App. Br. 7.
When determining obviousness, "the prior art as a whole must be
considered. The teachings are to be viewed as they would have been viewed
by one of ordinary skill." In re Hedges, 783 F.2d 1038, 1041 (Fed. Cir.
1986). In this case, Appellants have not explained why a skilled artisan
would exclude Example 2 in Nakane which describes a glass-ceramic having
0.5 weight percent of Sn02 from the prior art teaching as a whole. App.
Br. 8; see Nakane i-f 25 (Table 1). The composition ofNakane's Example 2
having 0.5 weight percent of Sn02 touches the end point of the "amount by
weight of between 0.1 % and 0.5%" as recited in claim 1. Appellants'
argument that N akane is "silent" concerning tin oxide is not supported by
the record and does not identify reversible error in the Examiner's finding in
this regard.
Moreover, a "range" in the prior art can be shown by reference to
multiple prior art patents. See, e.g., Iron Grip Barbell Co. v. USA Sports,
5 Consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013),
claims 2-5, 7-15, 17-22, 25, and 26 stand or fall with claim 1, as Appellants
make no distinct arguments beyond the arguments regarding claim 1. See,
e.g., App. Br. 7-13.
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Application 13/520,454
Inc., 392 F.3d 1317 (Fed. Cir. 2004) (stating that "Iron Grip is claiming a
weight plate with three elongated handles, within the range of the prior art"
when separate prior art patents disclosed weight plates having one, two, or
four holes or handles). In this case, the Examiner additionally finds that a
glass ceramic composition containing "Sn02<0.5 wt. %"is taught in Siebers.
Adv. Act. 21 (citing Siebers i-f 51 ). Appellants do not dispute this teaching
in Siebers. Compare Adv. Act. 21 with App. Br. 7-9; 6 Ans. 21. 7
Appellants' argument that Nakane does not show Sn02 as a result effective
variable (App. Br. 8) is therefore not supported by the combined prior art
teachings and does not identify reversible error in the Examiner's findings
with regard to Nakane and Siebers.
Appellants next argue that N akane does not teach a glass-ceramic
having "between 0.2% and 2.5% by weight ofCaO" as recited in claim 1
because Nakane describes a composition having "CaO 0 to 5%." App. Br. 9
(citing Nakane ,-r 22). Appellants argue that because CaO is optional in
Nakane, a skilled artisan would not consider CaO a result effective variable.
Id. Appellants also argue that Siebers likewise shows CaO is optional
because it describes a composition having "0-1.5" percent CaO. Id. (citing
Siebers i-f 38).
"A prima facie case of obviousness typically exists when the ranges of
a claimed composition overlap the ranges disclosed in the prior art." In re
Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). The prior art references
undisputedly describe that CaO may be included in the glass-ceramic.
Nakane i-f 22; Siebers i-f 38; compare Final Act. 5-6, with App. Br. 9-10. The
6 Appellants did not file a reply brief in this case.
7 Examiner's Answer mailed March 1, 2017 ("Ans.").
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Application 13/520,454
prior art ranges of CaO in both Nakane and Siebers undisputedly encompass
the range of"between 0.2% and 2.5%" recited in claim 1. The burden is
therefore on Appellants to show that the recited composition would not have
been obvious. Appellants in this case failed to carry their burden because
they fail to present factual evidence supporting a finding that the recited
range of CaO produces any unexpected results (discussed in further detail
infra). See in re Peterson, 315 F.3d at 1330.
Appellants lastly argue that Nakane does not teach a glass-ceramic
having "As20 3 in a weight content of from 0% to 0.01 %" as recited in
claim 1 because "Nakane relies upon the presence of arsenic oxide to effect
desired results." App. Br. 10. Appellants point to "examples 1-3 and 6-8
hav[ing] at least 0.5% As20 3" but do not explain why examples 4 and 5
showing 0% of As203 should be excluded from the prior art teaching as a
whole. Id. (citing Nakane i-f 25 (Table 1)). As we noted earlier, when
determining obviousness, "the prior art as a whole must be considered. The
teachings are to be viewed as they would have been viewed by one of
ordinary skill." In re Hedges, 783 F.2d at 1041. Appellants' argument is
not based on the entire teaching ofNakane and does not identify reversible
error in the Examiner's findings.
The examples presented by Appellants do not support any unexpected
results. The compositions in Table 1 of the Specification cited by
Appellants (App. Br. 11-12) are not commensurate in scope with that of
claim 1. For example, examples 3a, 3b, 3c, and 3d of Table 1 include 0.3 %
by weight, 0.3 % by weight, 0.3 % by weight, and 0.25 % by weight of
Sn02, respectively. Spec. at 19 (Table 1 ). Appellants do not explain why
these examples provide a reasonable basis for the recited range of "tin oxide
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Application 13/520,454
in an amount by weight of between 0.1 % and 0.5%." See App. Br. 11-12.
Appellants also do not show that the results are "unexpected compared with
the closest prior art." In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed.
Cir. 1991 ). Thus, Appellants have not presented sufficient evidence in
support of any unexpected results.
DECISION
The Examiner's rejection of claims 1-5, 7-15, 17-22, 25, and 26 is
affirmed.
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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