Ex parte Popov et al.

Board of Patent Appeals and Interferences

Nov 20, 2000

08674783 (B.P.A.I. Nov. 20, 2000)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of
the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte OLEG POPOV and JAKOB MAYA
__________
Appeal No. 1998-2148
Application 08/674,783
___________
ON BRIEF
___________
Before JERRY SMITH, FLEMING, and HECKER, Administrative Patent
Judges.
HECKER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejec-
tion of claims 1 through 4 and 6 through 9. Claim 5 has been
canceled, and claim 10 has been indicated as being allowable.
The invention relates to an inductively coupled
Appeal No. 1998-2148
Application 08/764,783
2
fluorescent lamp. In particular, referring to Figure 1, coil
1 is disposed within a reentrant cavity 2 within a bulbous
envelope 7. Coil 1 is also disposed within a cylinder 14 of
thermally conductive metal. Coil 1 has 7 to 11 turns, with a
pitch of 1 mm to 10 mm, a wire diameter of 0.5 mm to 3 mm, and
a height to diameter ratio of 0.5 to 5. Thermally conductive
cylinder 14 is attached to, and transfers heat to, fixture 15.
Representative independent claim 1 is reproduced as
follows:
1. An electrodeless fluorescent RF lamp and fixture
comprising:
a bulbous lamp envelope and a reentrant cavity
disposed in said envelope, a rare gas and vaporizable metal
fill in said envelope and a phosphor coating on the interior
thereof for generation of visible light;
a lamp base disposed outside said envelope and said
fixture being attached to said lamp base;
a cylinder formed of a light thermally-conductive
metal disposed in said reentrant cavity, said cylinder being
attached to said lamp base;
an induction coil and radio frequency excitation
generating means associated with said coil for the generation
of a plasma to produce radiation to excite said phosphor
coating, said coil and said means being situated outside said
envelope and fitted within said cavity and within said
Appeal No. 1998-2148
Application 08/764,783
3
cylinder, at least a major portion of said coil having a pitch
between about 1 and 10 mm and a wire diameter between about
0.5 and 3.0 mm.
The reference relied on by the Examiner is as
follows:
Postma et al. (Postma) 4,727,295 Feb. 23,
1988

Claims 1 through 4 and 6 through 9 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Postma.
Rather than repeat the arguments of Appellants or
the Examiner, we make reference to the brief, reply brief and
the answer for the details thereof.
OPINION
After a careful review of the evidence before us, we
agree with the Examiner that claims 1 through 4 and 6 through
9 are properly rejected under 35 U.S.C. § 103.
At the outset, we note that Appellants have
indicated on page 10 of the brief the claims stand separately,
which is “supported by the arguments set forth in Section VIII
hereof.” The Examiner contends that the claims have not been
argued separately (answer-page 3). An inspection of Section
VIII of the brief confirms the Examiner’s contention.
Appeal No. 1998-2148
Application 08/764,783
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However, Appellants point out that a CHART, appended to the
brief, compares each claim individually to the applied
reference (reply brief-page 1). Placing substance over form,
we will consider the appended CHART as arguments in support of
the claims standing separately.
The Examiner reasons that Postma discloses the
claimed invention except for the range of pitch and wire
diameter claimed. The Examiner contends that these parameters
depend on the appropriate current and inductance needed for a
particular sized lamp, and the optimum or workable range can
be determined by routine skill in the art (answer-pages 4 and
5).
Appellants argue that Postma’s protuberance 3 is not
equivalent to Appellants’ reentrant cavity 2 because
protuberance 3 flares out at the bottom and it is uncertain if
there is a seal between the bottom of the flare on
protuberance 3 and the envelope. (Brief-page 11.)
These arguments fail at the outset because they are
not based on limitations appearing in the claims. Thus, the
flare of protuberance 3 and its being sealed to the envelope
Appeal No. 1998-2148
Application 08/764,783
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are immaterial as to its equivalence to reentrant cavity 2.
See In re Self, 671 F.2d 1344, 1350, 213 USPQ 1, 5 ((CCPA
1982).
Appellants further argue that Postma’s cylinder 11
has no substantial thermal connection to base 10 or any
fixture, and that “Postma et al. simply does not remove heat
in the way Appellants remove heat.” (Brief-pages 11 and 12.)
The Examiner responds “The cylinder being a light
and thermally-conductive cylinder is the only requirement of
the claimed invention...” (answer-page 5).
We agree with the Examiner. Claims 1 and 8 state:
a cylinder formed of a light thermally-conductive
metal disposed in said reentrant cavity, said
cylinder being attached to said lamp base
We can find no claim limitation requiring the cylinder to have
a substantial thermal connection to anything. Postma’s
cylinder is “a thin-walled cylindrical metal body” (column 1,
line 40), “preferably in the form of a foil” (column 2, line
41), which may be a copper foil (column 3, line 26). Postma’s
Appeal No. 1998-2148
Application 08/764,783
By our calculation Appellants’ wire is actually 12 times1
thicker at their high end.
6
cylinder clearly meets the language of the claims, and is even
of the same material (copper) disclosed by Appellants
(specification, page 5, line 1). With regard to Postma’s
cylinder being “attached to said lamp base” (brief-page 13),
we note that cylinder 11 is connected (i.e., attached) to lamp
cap 10 through conductor 12 (column 3, lines 22-24).
Appellants argue that their claimed wire diameter,
0.5 mm to 3.0 mm, is twice as thick as Postma’s 0.25 mm at
their low end, and six times thicker at their high end. 1
Appellants contend Postma’s wire diameter is not “very close”
as alleged by the Examiner (brief-page 13).
The Examiner responds that “very close” means
Appellants’ and Postma’s wire are of the same order of
magnitude, both measured in millimeters (answer-page 7). In
support of the Examiner’s view, we note that Appellants’ own
range represents a factor of 6 between the low and high end of
their range. Thus, Postma’s factor of 2 at the low end sheds
a realistic light on “very close” when considering Appellants’
Appeal No. 1998-2148
Application 08/764,783
7
factor of 6 from their low to high end. We have considered
these factors since Appellants presented them in their
arguments. However, we base our decision on the Examiner’s
position that the claimed wire size is a result of one of
ordinary skill in the art obtaining the optimum size when
designing this type of lamp for a desired operating voltage,
frequency, etc. Although Appellants’ claims recite a wire
size of 0.5 mm to 3.0 mm, their specification only recites 2.0
mm (specification, page 6, line 3). In conjunction with this,
Appellants have chosen an operating frequency of 13.56 MHZ
(specification, page 6, line 30). Postma operates at 2.65 MHZ
(column 3, line 55). With such a wide variation available in
the parameters that will produce an operating lamp, we agree
with the Examiner that it would have been obvious to one of
ordinary skill in the art, based on the teachings of Postma,
to have constructed a lamp using wire within Appellants’
claimed range. This is especially so since Appellants have
neither disclosed nor alleged anything critical about their
wire range.
On page 14 of their brief Appellants insist that the
Appeal No. 1998-2148
Application 08/764,783
8
Examiner consider comments made by another Examiner regarding
a different application. We are unaware of any requirement
for the Examiner to do so. Each patent application is treated
separately, and the relevance of a particular prior art
reference to different claims can vary vastly. A glance at
the other Examiner’s comments leads one to believe that the
other application was actually claiming some sort of thermally
conductive path. As noted supra, no such path or heat removal
is recited in Appellants’ claims. We agree with the Examiner
that “Another examiner’s work has no bearing on whether or not
the present application is allowable or not. It is
irrelevant.” (Answer-page 6.)
Turning to Appellants’ appended CHART, we will
address the notes made with regard to each claim.
Claim 1
Appellants object to their reentrant cavity being
equivalent to Postma’s protuberance 3. We have addressed this
point supra, and find no claimed distinction.
Appellants note their fixture is disclosed as being
Appeal No. 1998-2148
Application 08/764,783
9
attached to their lamp base differently than in Postma. We
find that any disclosed difference is not reflected in
Appellants’ claim.
Appellants object to Postma’s cylinder of copper
foil 11 being glued on the inside of protuberance 3. We find
nothing in Appellants’ claim to be contrary to Postma’s
gluing. Appellants complain that Postma’s cylinder
11 is not attached to a fixture, especially for heat
transference. We have considered this argument supra, found
the required attachment, and noted that heat transference is
not required by the claim language.
Appellants indicate that Postma makes no disclosure
of the pitch of the coil. We note that Postma’s coil has 12
turns (column 3, line 52) and that the coil is 12 mm long
(column 3, lines 61-63). This translates to a pitch of 1.0 mm
which is within Appellants’ claimed range of 1 to 10 mm.
Appellants indicate that Postma makes no disclosure
of the wire diameter. As discussed supra, Postma discloses a
diameter of 0.25 mm (column 3, line 52) and reasons were given
as to how Appellants’ 0.5 to 3.0 mm was considered obvious in
Appeal No. 1998-2148
Application 08/764,783
10
view thereof.
Claim 2
Appellants indicate that Postma is silent about the
shape of the plasma. Appellants claim their coil generates a
cylindrical plasma. This is so because Appellants’ coil is
cylindrical. Since Postma’s coil is also cylindrical, Postma
inherently generates a cylindrical plasma.
Claim 3
Appellants note that Postma makes no disclosure
concerning either the height of the coil or the diameter of
the coil and especially the ratio of the height of the coil
relative to the diameter of the coil (H /D ). Appellants’coil coil
claim recites a height to diameter coil ratio of “between
about 0.5 and 5.” Postma discloses a coil height of 12 mm
(column 3, lines 61-63). Postma’s magnetic core is about 8 mm
in diameter (column 3, line 50) and the coil 5 is wound around
the magnetic core and thus must be slightly larger in diameter
than 8 mm.
Consequently, the ratio of Postma’s coil height to diameter is
12/slightly more that 8 mm. This translates to about 1.5,
Appeal No. 1998-2148
Application 08/764,783
We note that “between about 5 and 12 “ turns is recited2
here while the specification only recites “between 7 and 11"
turns (page 6, line 4). We also note that the wire diameter
of “0.5 and 3 mm” and the pitch of “1 and 10 mm” is redundant
and already recited in claim 1.
11
which is well within Appellants’ about 0.5 to 5.
Claim 4
Appellants contend that Postma makes no disclosure
concerning the spacing of the turns of the coil, but it
appears from the drawing that the coil turns 5 touch each
other. As noted supra, Postma’s coil is 12 mm in length and
has 12 turns. This allows 1.0 mm per turn. With a wire size
of 0.25 mm, we note that there is approximately 0.75 mm
between each turn. We therefore find that Postma’s coil turns
do not touch each other. Claim 62
Appellants contend that Postma makes no disclosure
concerning wire diameter. As noted supra, Postma discloses a
wire diameter of 0.25 mm.
Claim 7
Appeal No. 1998-2148
Application 08/764,783
12
Appellants contend that Postma does not disclose a
“means to remove heat”. We agree with the Examiner’s
explanation on pages 5 and 6 of the answer, wherein it states:
The thermally-conductive cylinder of Postma is not a
perfect insulator and must dissipate heat. Again
dissipating heat to the outside thereof is simply
not
an issue with the claimed invention, but even if it
were Postma’s device must do so (Note the connection
of such to the lead in).
Claims 8 and 9
Appellants note the same shortcomings of Postma as
alleged with respect to claims 1 through 4, 6 and 7. We see
no need to repeat the analysis, and find that Postma does make
obvious all the limitations of claims 8 and 9, as noted with
respect to claims 1 through 4, 6 and 7.
We are not required to raise and/or consider issues
not argued by Appellants. As stated by our reviewing court in
In re Baxter Travenol Labs., 952 F.2d 388, 391, 21 USPQ2d
1281, 1285 (Fed. Cir. 1991), “[i]t is not the function of this
court to examine the claims in greater detail than argued by
an appellant, looking for nonobvious distinctions over the
prior art.” 37 CFR
Appeal No. 1998-2148
Application 08/764,783
13
1.192(a) as amended at 60 Fed. Reg. 14518 (Mar. 17, 1995),
which was controlling at the time of Appellants' filing the
brief, states as follows:
The brief . . . must set forth the
authorities and arguments on which the
appellant will rely to maintain the appeal.
Any arguments or authorities not included
in the brief may be refused consideration
by the Board of [P]atent Appeals and
Interferences, unless good cause is shown.
Also, 37 CFR § 1.192(c)(8)(iv) states:
For each rejection under 35 U.S.C. 103,
the argument shall specify the errors in
the rejection and, if appropriate, the
specific limitations in the rejected claims
which are not described in the prior art
relied on in the rejection, and shall
explain how such limitations render the
claimed subject matter unobvious over the
prior art. If the rejection is based upon
a combination of references, the argument
shall explain why the references, taken as
a whole, do not suggest the claimed subject
matter, and shall include, as may be
appropriate, an explanation of why features
disclosed in one reference may not properly
be combined with features disclosed in
another reference. A general argument that
all the limitations are not described in a
single reference does not satisfy the
requirements of this paragraph.
Thus, 37 CFR § 1.192 provides that just as the court is not
Appeal No. 1998-2148
Application 08/764,783
14
under any burden to raise and/or consider such issues, this
board is also not under any greater burden.
In view of the foregoing, the decision of the
Examiner rejecting claims 1 through 4 and 6 through 9 under 35
U.S.C. § 103 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
JERRY SMITH )
Administrative Patent Judge )
Appeal No. 1998-2148
Application 08/764,783
15
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
STUART N. HECKER )
Administrative Patent Judge )
SNH:pgg
Owen J. Meegan
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