Ex Parte Ota et al

Board of Patent Appeals and Interferences

Aug 8, 2008

10471180 (B.P.A.I. Aug. 8, 2008)

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UNITED STATES PATENT AND TRADEMARK OFFICE 5
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BEFORE THE BOARD OF PATENT APPEALS 8
AND INTERFERENCES 9
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Ex parte NOBUHIKO OTA, TOSHIKAZU HAMAO, 12
and YOSHIFUSA TSUBONE 13
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Appeal 2008-1493 16
Application 10/471,180 17
Technology Center 2800 18
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Decided: August 8, 2008 21
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Before JOHN C. MARTIN, JOSEPH F. RUGGIERO, and MARK 25
NAGUMO, Administrative Patent Judges. 26
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MARTIN, Administrative Patent Judge. 28
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DECISION ON APPEAL 32
STATEMENT OF THE CASE 33
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s 34
rejection of claims 1-4 under 35 U.S.C. § 103(a). 35
We have jurisdiction under 35 U.S.C. § 6(b). 36
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We AFFIRM. 1
2
A. Appellants’ invention and the admitted prior art 3
Appellants’ invention is an improvement of vacuum motors 4
employing resin materials that experience outgassing and thereby 5
contaminate the vacuum environment (Abstract, Specification 11:1-6). 6
Appellants reduce the rate of outgassing by applying an inorganic film, such 7
as a metal, to the exposed parts of resin material (id. at 11:7-13). 8
Figures 9 and 10 are reproduced below. 9
10
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1
Figures 9 and 10 depict prior-art vacuum motor structures. 2
Figure 9 is a partial, sectional view of a conventional can structure 3
102 for use in a linear motor (Specification 1:15-22). The can structure 4
includes a housing 101 and a resin plates 106. Figure 10 is a sectional side 5
view of a portion of a conventional axial gap motor (id. at 1:33-34). The 6
depicted structure includes a stator core 1, a coil 2, a mold resin 3, and a 7
stator housing 4 (id. at 1:35 to 2:1). 8
Exposing the resin materials to a vacuum causes organic gases to be 9
released, preventing the target pressure from being reached (id. at 2:6-8, 23-10
25) and contaminating the vacuum environment, including any silicon 11
wafers contained therein (id. at 8-10 and 26-28). 12
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One prior-art solution to the above outgassing problem has been to 1
cover the resin material with a metallic can (id. at 2:11-13 and 29-30). 2
Although this metallic can structure reduces outgassing, eddy currents 3
generated therein reduce the efficiency of the motor and this can structure is 4
difficult to manufacture, increasing production costs (id. at 2:30-34). 5
Appellants’ solution to the outgassing problem is to cover the exposed 6
surfaces of the resin material with a thin film of inorganic material. 7
Appellants’ Figures 1 and 2 are reproduced below. 8
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1
Figures 1 and 2 show Appellants’ invention applied to the prior-art 2
motor structures depicted in Figures 9 and 10, respectively. 3
Figure 1 shows the surfaces of resin plate 106 covered with an 4
inorganic coating 107, while Figure 2 shows the surfaces of resin molds 3 5
covered with an inorganic film 5 (id. at 6:3-21). In a first embodiment, the 6
inorganic film is a metal film, such as an electroless nickel plating film 7
having a thickness from 0.5 µm to 50 µm (id. at 6:24-25 and 31-33). As a 8
means for providing a film 5 of a metal, it is also possible to use a method 9
such as a hot dipping method, a vacuum evaporation method, or a thermal 10
spraying method in addition to the electroless plating (id. at 7:26-29). 11
Moreover, it is possible to use aluminum, copper, gold, or silver in addition 12
to nickel for the material of the metal (id. at 7:29-31). 13
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In a second embodiment, the inorganic film is a ceramics film, such as 1
a titanium nitride (TiN) film formed by an ion plating treatment (id. at 7:33-2
34) with a thickness from 0.5 µm to 50 µm (id. at 8:5-6). As a means for 3
providing a film of ceramics, it is also possible to use a method such as a 4
sol-gel method, a plasma CVD method, or a thermal spraying method in 5
addition to the ion plating treatment (id. at 8:35 to 9:2). Moreover, it is also 6
possible to use silicon dioxide (SiO2), alumina (Al2O3) or diamond-like 7
carbon (DLC) in addition to the TiN for the metal or the ceramics (id. at 9:2-8
4). 9
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B. The claims 11
Claims 1 and 2, the only independent claims, read as follows: 12
1. A linear motor for a vacuum use having a can 13
enclosing at least a coil used for a stator or a movable member, 14
said can being formed of a resin, wherein at least a part of a 15
surface of the resin of the can is covered with an inorganic film. 16
2. A motor for a vacuum use having a coil used for a 17
stator is molded with a resin, wherein a surface to be exposed to 18
a vacuum atmosphere of the resin is covered with an inorganic 19
film. 20
21
C. The references and rejections 22
The rejections are based on the following prior art: 23
The admitted prior art depicted in Appellants’ Figures 9 and 10 and 24
described at pages 1 and 2 of the Specification (“admitted prior art”). 25
Xia et al. (“Xia”) 5,963,840 Oct. 5, 1999 26
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Gabrys et al. (“Gabrys”) 6,798,092 B1 Sep. 28, 2004 1
Gabrys issued from nonprovisional Application 09/976,506, which 2
was filed on October 12, 2001, subsequent to the March 31, 2001, filing date 3
of Appellants’ Japanese priority document JP-2001-70899, of which 4
Appellants have been the accorded benefit under 35 U.S.C. § 119(a) by the 5
Examiner (Suppl. Answer1 2). 6
Gabrys explains that it “is related to U.S. Provisional Application No. 7
60/241,575”2 (Gabrys, col. 1, ll. 4-5). The Examiner accorded the subject 8
matter relied on in Gabrys a § 102(e)(2) date of October 12, 2000, the filing 9
date of the Provisional Application (Suppl. Answer 2). 10
Claims 1-3 stand rejected under 35 U.S.C. § 103(a) for obviousness 11
over the admitted prior art in view of Gabrys. 12
Claim 4 stands rejected under 35 U.S.C. § 103(a) for obviousness over 13
the admitted prior art in view of Gabrys and Xia. 14
Appellants separately argue the merits of only independent claims 1 15
and 2. 16
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1 References herein to the Supplemental Answer are to the August 1,
2007, Supplemental Examiner’s Answer, which repeats the Examiner’s
position as stated in the February 13, 2007, Supplemental Examiner’s
Answer. References to the Reply Brief are to the April 6, 2007, Reply Brief
Pursuant to 37 C.F.R § 41.41, which is effectively incorporated by reference
into the September 28, 2007, Response to the Supplemental Examiner’s
Answer.
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1
THE ISSUES3 2
1. Does the subject matter relied on by the Examiner in Gabrys have 3
support in the Provisional Application?4 4
2. Is the subject matter relied on in Gabrys analogous art? 5
3. Would the claimed subject matter have been obvious over the 6
admitted prior art in view of Gabrys (to the extent supported by the 7
Provisional Application)? 8
9
ISSUE 1: DOES THE SUBJECT MATTER RELIED ON 10
BY THE EXAMINER IN GABRYS HAVE SUPPORT 11
IN THE PROVISIONAL APPLICATION? 12
A. Principles of law 13
As correctly noted by Appellants, “In order to rely on the filing date 14
for the parent '575 provisional application, it needs to provide support for the 15
teaching for which Gabrys is relied upon” (Br. 9). 16

2 A copy of the Provisional Application is enclosed.
3 Appellants have the burden on appeal to this Board to show
reversible error by the Examiner in maintaining the rejection. See In re
Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (“On appeal to the Board, an
applicant can overcome a rejection by showing insufficient evidence of
prima facie obviousness or by rebutting the prima facie case with evidence
of secondary indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d
1350, 1355 (Fed. Cir. 1998)).
4 Referred to in Appellants’ briefs as “Gabrys ‘575.”
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The 35 U.S.C. 102(e) critical reference date of a U.S. 1
patent or U.S. application publications and certain international 2
application publications entitled to the benefit of the filing date 3
of a provisional application under 35 U.S.C. 119(e) is the filing 4
date of the provisional application with certain exceptions if the 5
provisional application(s) properly supports the subject matter 6
relied upon to make the rejection in compliance with 35 U.S.C. 7
112, first paragraph. 8
MPEP § 2136.03 (III) (8th ed., rev. 6, Sept. 2007). 9
10
B. Analysis 11
The Examiner has indicated that Gabrys is not being relied upon for 12
subject matter found in the admitted prior art. See Answer 4 (“Regarding 13
claims 1-3, the applicant's admitted of [sic] prior art shows all of the 14
limitations of the claimed invention except for the surface of the resin being 15
covered with an inorganic film selected from nickel, aluminum, and 16
copper.”). 17
As explained above, the admitted prior art depicted in part in 18
Appellants’ Figure 9 and described at page 1, lines 15-29, includes a 19
conventional can 102 for use in a conventional linear motor (Specification 20
1:19-22). Appellant does not deny that a conventional can used in a 21
conventional linear motor encloses a coil for a stator or a movable member, 22
as recited in claim 1. As a result, the only language of claim 1 that is not 23
satisfied by the admitted prior art is: “wherein at least a part of a surface of 24
the resin of the can is covered with an inorganic film.” Similarly, the 25
admitted prior art depicted in Appellants’ Figure 10 and described at page 1, 26
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line 30 to page 2, line 10, satisfies the following language of claim 2: “A 1
motor for a vacuum use having a coil used for a stator is molded with a 2
resin,” with the result that the only unsatisfied claim 2 language is: “wherein 3
a surface to be exposed to a vacuum atmosphere of the resin is covered with 4
an inorganic film.” 5
The Examiner relies on Gabrys only for its teaching of “us[ing] 6
aluminum to cover the surface of resin for the purpose of preventing outgas 7
problem in a vacuum environment.” Answer 4. See also id. at 5 (“Gabrys et 8
al. does not have to show the motor that has a can because the applicant's 9
admitted of [sic] prior art already shows it in Figure 9.”). 10
At page 5 of the Answer and pages 2-3 of the Supplemental Answer, 11
the Examiner identified the page and line numbers and the figure being 12
relied on in Gabrys and the page and line numbers of the allegedly 13
supporting material in the Provisional Application. Although Appellants 14
argue that “the Examiner is believed to be incorrect in his position that 15
Gabrys' patent 6,798,092 is supported by Provisional Application No. 16
60/241,575” (Reply to Suppl. Answer 4), Appellants do not explain which 17
material relied on by the Examiner in Gabrys lacks support in the 18
Provisional Application. Instead, Appellants compare the claims to the 19
subject matter of the Provisional Application and argue that the claimed 20
subject matter would have been unobvious over the admitted prior art in 21
view of the Provisional Application (Br. 9-12), thereby treating the 22
Provisional Application as representative of all of the subject matter in 23
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Gabrys on which the Examiner is permitted to rely.5 We will likewise treat 1
the rejection as though it is based on the admitted prior art in view of the 2
Provisional Application. 3
4
ISSUE 2: IS THE SUBJECT MATTER RELIED 5
ON IN GABRYS ANALOGOUS ART? 6
A. Principles of law 7
As explained in In re Kahn, 441 F.3d 977 (Fed. Cir. 2006), 8
[t]he analogous-art test requires that the Board show that a 9
reference is either in the field of the applicant's endeavor or is 10
reasonably pertinent to the problem with which the inventor 11
was concerned in order to rely on that reference as a basis for 12
rejection. In re Oetiker, 977 F.2d 1443, 1447 [24 USPQ2d 13
1443] (Fed. Cir. 1992). References are selected as being 14
reasonably pertinent to the problem based on the judgment of a 15
person having ordinary skill in the art. Id. (“[I]t is necessary to 16
consider ‘the reality of the circumstances,’—in other words, 17
common sense—in deciding in which fields a person of 18
ordinary skill would reasonably be expected to look for a 19
solution to the problem facing the inventor.” (quoting In re 20
Wood, 599 F.2d 1032, 1036 [202 USPQ 171] (C.C.P.A. 21
1979))). 22
Kahn, 441 F.3d at 986-87. See also In re Clay, 966 F.2d 656, 659 (Fed. Cir. 23
1992) (“[a] reference is reasonably pertinent if, even though it may be in a 24
different field from that of the inventor's endeavor, it is one which, because 25

5 In thus relying on the Provisional Application, Appellants
effectively concede that all of its relevant subject matter was carried forward
into Gabrys.
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of the matter with which it deals, logically would have commended itself to 1
an inventor's attention in considering his problem.”). 2
B. Analysis 3
The Provisional Application discloses a solution to outgassing 4
problems experienced by vacuum-encapsulated flywheel uninterruptable 5
power supplies, which includes a “motor generator” having a “motor 6
portion” that converts electrical energy into mechanical energy by spinning 7
up the flywheel 40 and a “generator portion” that converts the mechanical 8
energy back into electrical energy by spinning down the flywheel 40 9
(Provisional Application 2:16-22). Such power supplies experience 10
problems with gas desorption (i.e., outgassing): 11
One of the most challenging problems associated with the 12
production of vacuum-encapsulated flywheel uninterruptible 13
power supplies is how to maintain a specific pressure over the 14
lifetime of the system. The problem stems from the fact that all 15
materials desorb gas, albeit different gas species at different 16
rates. Since all materials desorb gas, the question of how to 17
maintain a specific pressure devolves into a question of how to 18
minimize the rate of gas desorption. Plastics used on electrical 19
wires and in composite and varnishes used on magnet wires and 20
motor laminations desorb gas at rates several orders of 21
magnitude faster than metallic components used within the 22
uninterruptible power supply. In addition, plastics 23
and varnishes can also desorb gas species, such as aliphatic 24
hydrocarbons, that are difficult to adsorb or absorb with a getter 25
pump. Historically, electrical and magnet wire have been 26
coated with enamel and motor and generator laminations have 27
been produced using vacuum impregnation techniques to 28
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minimize gas desorption. These techniques, however, are 1
costly, while only modestly effective. 2
Id. at 1:10-22. Appellants concede that the above-mentioned “plastics used 3
on electrical wires” are “resins.” See Br. 11 (“The only mention of a resin in 4
Gabrys '575 relates to the use of plastics in wires (see page 1, line 15 of 5
Gabrys).”). 6
Appellants argue that “the present invention and the admitted prior art 7
are related to canned motors, a completely non-analogous art compared to 8
the field of vacuum-encapsulated flywheels” (Br. 12). This argument is 9
unconvincing because it addresses only one of the two inquires that make up 10
the test for analogous art. Even assuming for the sake of argument that 11
vacuum-encapsulated flywheel power supplies are not in the same field of 12
endeavor as the admitted prior art or Appellants’ invention, Appellants have 13
not explained why a patent explaining how to reduce outgassing in a 14
vacuum-encapsulated flywheel power supply employing motor generators 15
would not have been considered to be reasonably pertinent to the problem 16
with which the inventor was concerned, which is how to reduce outgassing 17
in resins used in motors that operate in vacuum environments. 18
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ISSUE 3: WOULD THE CLAIMED SUBJECT MATTER 1
HAVE BEEN OBVIOUS OVER THE ADMITTED 2
PRIOR ART IN VIEW OF GABRYS? 3
A. Principles of law 4
“[T]he examiner bears the initial burden, on review of the prior art or 5
on any other ground, of presenting a prima facie case of unpatentability.” 6
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). A rejection under 7
35 U.S.C. § 103(a) must be based on the following factual determinations: 8
(1) the scope and content of the prior art; (2) the level of ordinary skill in the 9
art; (3) the differences between the claimed invention and the prior art; and 10
(4) any objective indicia of non-obviousness. DyStar Textilfarben GmbH & 11
Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1360 (Fed. Cir. 12
2006) (citing Graham v. John Deere Co., 383 U.S. 1, 17 (1966)). 13
“The combination of familiar elements according to known methods is 14
likely to be obvious when it does no more than yield predictable results.” 15
Leapfrog Enter., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 16
2007) (quoting KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1739 (2007)). 17
Discussing the obviousness of claimed combinations of elements of prior 18
art, KSR explains: 19
When a work is available in one field of endeavor, design 20
incentives and other market forces can prompt variations of it, 21
either in the same field or a different one. If a person of 22
ordinary skill can implement a predictable variation, §103 23
likely bars its patentability. For the same reason, if a technique 24
has been used to improve one device, and a person of ordinary 25
skill in the art would recognize that it would improve similar 26
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devices in the same way, using the technique is obvious unless 1
its actual application is beyond his or her skill. Sakraida [v. AG 2
Pro, Inc., 425 U.S. 273 (1976)] and Anderson's-Black Rock[, 3
Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969)] are 4
illustrative—a court must ask whether the improvement is more 5
than the predictable use of prior art elements according to their 6
established functions. 7
KSR, 127 S. Ct. at 1740. If the claimed subject matter “involve[s] more than 8
the simple substitution of one known element for another or the mere 9
application of a known technique to a piece of prior art ready for the 10
improvement,” id., 11
it will be necessary . . . to look to interrelated teachings of 12
multiple patents; the effects of demands known to the design 13
community or present in the marketplace; and the background 14
knowledge possessed by a person having ordinary skill in the 15
art, all in order to determine whether there was an apparent 16
reason to combine the known elements in the fashion claimed 17
by the patent at issue. 18
Id. at 1740-41. “To facilitate review, this analysis should be made explicit.” 19
Id. at 1741. That is, “there must be some articulated reasoning with some 20
rational underpinning to support the legal conclusion of obviousness.” Id. 21
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). See also 22
PharmaStem Therapeutics Inc. v. Viacell Inc., 491 F.3d 1342, 1360 (Fed. 23
Cir. 2007) (proponent of obviousness based on combination of references 24
must show “that a person of ordinary skill in the art would have had reason 25
to attempt to make the composition or device, or carry out the claimed 26
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process, and would have had a reasonable expectation of success in doing 1
so.”) (citations omitted). 2
The rationale for combining reference teachings is not limited to the 3
problem the patentee was trying to solve: “any need or problem known in 4
the field of endeavor at the time of invention and addressed by the patent can 5
provide a reason for combining the elements in the manner claimed.” In re 6
Icon Health and Fitness Inc., 496 F.3d 1374, 1380 (Fed. Cir. 2007) (quoting 7
KSR, 127 S. Ct. at 1742). 8
Also, a rationale for combining or modifying reference teachings can 9
be based on common knowledge or common sense rather than coming from 10
the references themselves. “[T]he [obviousness] analysis need not seek out 11
precise teachings directed to the specific subject matter of the challenged 12
claim, for a court can take account of the inferences and creative steps that a 13
person of ordinary skill in the art would employ.” KSR, 127 S. Ct. at 1741. 14
Furthermore, a reference may be understood by the artisan to be 15
suggesting a solution to a problem that the reference does not discuss. See 16
KSR, 127 S. Ct. at 1742 (“The second error of the Court of Appeals lay in its 17
assumption that a person of ordinary skill attempting to solve a problem will 18
be led only to those elements of prior art designed to solve the same 19
problem. . . . Common sense teaches . . . that familiar items may have 20
obvious uses beyond their primary purposes, and in many cases a person of 21
ordinary skill will be able to fit the teachings of multiple patents together 22
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like pieces of a puzzle. . . . A person of ordinary skill is also a person of 1
ordinary creativity, not an automaton.”). 2
3
B. Analysis 4
As a solution to the problem of outgassing from the materials used in 5
vacuum-encapsulated flywheel power supplies, the Provisional Application 6
discloses using vapor deposition to apply a thin layer of coating material, 7
such as aluminum, to the surfaces of the outgassing components of the 8
motor/generator (Provisional Application 1:31-32; 2:39-40). The coating 9
operation can be achieved in either of two ways. The first, depicted in 10
Figure 1, is to coat the surfaces of all of the components in situ, such as by 11
using a high current to resistance heat and vaporize the coating material 71 12
(id. at 2:6, 38-40; 3:17-19).6 The second technique, depicted in Figure 2 (on 13
which the Examiner relies -- see Answer 5), is to use a vacuum chamber 31 14
to coat individual components 44 prior to assembly of the power supply (id. 15
at 3:41-42). The components to be coated are the “[c]omponents that have 16
substantial rates of gas desorption or desorb gas species that are difficult to 17
absorb with a getter pump, such as the motor, generator, magnets, magnetic 18
bearing laminations, magnet wires or the flywheel 40” (id. at 3:41-45). 19

6 “Rather than use the preferred thermal evaporation technique
described above, the components can be negatively biased, a reactant gas
(e.g. N2, O2, CH4, C2H2) can be used and the coating material 71 can be
vaporized using an electron beam, magnetic sputtering, anodic arc or other
(Continued on next page.)
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Appellants do not deny that a coating applied by vapor deposition in the 1
foregoing manner constitutes an “inorganic film,” as required by the claims. 2
The Examiner concluded that it would have been obvious in view of 3
Gabrys to use a vapor deposition apparatus like that depicted in Figure 2 of 4
the Provisional Application to coat the resin in the admitted prior art with an 5
aluminum film for the purpose of “preventing” outgassing from the resin 6
(Answer 4). 7
Appellants have not pointed out any reversible error in the Examiner’s 8
reasoning. Appellants criticize the Provisional Application on the ground 9
that 10
there is no teaching related to a motor/linear motor that has a 11
can. Further, there is no teaching related to a can that is made 12
of resin as in claim 1 or a motor whose stator is molded with 13
resin as in claim 2. The only mention of a resin in [the 14
Provisional Application] relates to the use of plastics in wires 15
(see page 1, line 15 of [the Provisional Application]). 16
However, there is no mention of any component of the 17
uninterrupted power supply as being made of resin. 18
Specifically, even if the flywheel arrangement is construed to 19
be a motor, it is not disclosed to have a stator coil that is 20
enclosed in a can made of a resin or a stator coil that is itself 21
molded with resin. 22
Br. 11. This argument is unresponsive to the rejection, which relies on the 23
admitted prior art as teaching a “can formed of resin” (claim 1) and a “stator 24
molded with a resin” (claim 2) and also as teaching that these resins were 25

source” (Provisional Application 5:14-17).
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recognized to be sources of outgassing. The Provisional Application is 1
relied on only for its teaching that outgassing problems with materials used 2
in a vacuum atmosphere, including materials in motors and generators, can 3
be reduced by application of a protective film, such as an aluminum film, 4
which is an inorganic film. The artisan would have recognized that this 5
solution is applicable to any sources of outgassing, including the resins used 6
in the admitted prior art. In fact, as noted above, Appellants have conceded 7
that the “plastics on electrical wires” described in the Provisional 8
Application as a source of “desorption gas” are resins (Br. 11). 9
Appellants also argue that 10
[a] skilled artisan would not have been able to practice the 11
present invention, as recited in claims 1 and 2, from the 12
combined teachings of the admitted prior art and [the 13
Provisional Application]. Specifically, a skilled artisan would 14
not have been able to make a canned motor with the can being 15
formed of resin and at least a part of the can being covered with 16
an organic film. 17
Reply Br. 6. This nonenablement argument is unconvincing because it lacks 18
any supporting reasoning. 19
For the foregoing reasons, the rejection of claims 1 and 2 under 20
35 U.S.C. § 103(a) for obviousness over the admitted prior art in view of 21
Gabrys is affirmed, as is the rejection on that ground of unargued dependent 22
claim 3. 23
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The rejection of dependent claim 4 under 35 U.S.C. § 103(a) for 1
obviousness over the admitted prior art in view of Gabrys and Xia is 2
affirmed because that rejection has not been separately argued. 3
DECISION 4
The Examiner’s decision that claims 1-4 are unpatentable for 5
obviousness over the prior art is affirmed. 6
No time period for taking any subsequent action in connection with 7
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 8
§§ 41.50(f) and 41.52(b). 9
AFFIRMED 10
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SD 12
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SUGHRUE MION, PLLC 16
2100 PENNSYLVANIA AVE. NW 17
WASHINGTON DC 20037-3213 18
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Enclosure: Copy of Gabrys Provisional Application 60/241,575. 22