Ex Parte Robinson

Patent Trials and Appeals Board

Jun 26, 2019

14074897 - (D) (P.T.A.B. Jun. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/074,897 11/08/2013 Martin Robinson
26360 7590 06/26/2019
Renner Kenner Greive Bobak Taylor & Weber Co., LPA
Huntington Tower, Suite 400
106 South Main Street
Akron, OH 44308-1412
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.
IRI.P.US0003 1030
EXAMINER
LEI, JIE
ART UNIT PAPER NUMBER
2872
MAIL DATE DELIVERY MODE
06/26/2019 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 MARTIN ROBINSON
Appeal2018-000958
Application 14/074,897
Technology Center 2800
Before LARRY J. HUME, JUSTIN BUSCH, and JOYCE CRAIG,
Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's decision to reject claims 1, 3, 5-12, 14, and 16-20, which
constitute all the claims pending in this Application. Claims 2, 4, 13, and 15
were canceled previously. Oral arguments were heard on June 4, 2019. A
transcript of the hearing will be added to the record in due course. We have
jurisdiction over the pending claims under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
Appellant's invention generally "relates to a viewing window
assembly used to monitor electrical equipment and components mounted in
a housing" and, more specifically, "to a curved viewing window assembly
Appeal2018-000958
Application 14/074,897
for an electrical assembly or conductor that has a non-flat curved surface
such as an isophase bus duct or electrical motor housing, that permits the
transmission of infrared (IR) light, ultraviolet (UV) light, and/or visible light
therethrough." Spec. 1:4--9. A viewing window transparent to light (e.g.,
IR, UV, visible light) is disposed in a housing wall of such equipment
housing so that the interior of the housing can be imaged or monitored by an
appropriate camera or device to monitor the equipment. Spec. 1 :25-2: 16.
According to the Specification, industry practice was to retrofit viewing
windows to existing housing and, in the case of cylindrical housing,
retrofitting requires substantial modification to add a flat viewing window.
Spec. 2: 17-26. Moreover, according to the Specification, flat viewing
windows into cylindrical housings produce unsatisfactory results, including
"unwanted environmental leakage around the interface of the" equipment
housing and the viewing window and "unwanted intrusion of debris and
other particles from the external environment through the interface to the
housing." Spec. 2:30-3:2. Thus, embodiments of Appellant's invention
include a curved viewing window assembly for a curved housing including a
curved lens transparent to infrared light in order monitor electrical
equipment inside the curved housing. Spec. 3:3-12. Claims 1, 12, and 20
are independent claims. Claim 1 is reproduced below:
1. An infrared viewing window assembly for an electrical
component assembly, the infrared viewing window assembly
compnsmg:
a body having an at least partially curved portion with an
aperture disposed therethrough, said body defining a cavity that
is configured to carry one of more electrical components therein;
and
a lens assembly disposed upon said at least partially
curved portion of said body, said lens assembly including:
2
Appeal2018-000958
Application 14/074,897
a curved lens transparent to at least infrared (IR)
light; and
two curved grilles for supporting said curved lens, a
front curved grille having a first plurality of viewing
apertures, and a rear curved grille having a second
plurality of viewing apertures, wherein said first plurality
of viewing apertures of said front grille are spaced further
apart than said second plurality of viewing apertures of
said rear grille are spaced apart, said curved lens and said
first and second plurality of viewing apertures of said two
curved grilles in optical alignment with said aperture of
said body for viewing of said one or more electrical
components contained within the cavity of said body.
REJECTIONS
Claims 1, 3, 5-8, 10-12, 14, and 16-20 stand rejected under 35 U.S.C.
§ 103 as obvious in view of Robinson (US 2010/0014152 Al; Jan. 21,
2010), Watkins (US 2,659,686; Nov. 17, 1953), and Visser (US 6,576,912
B2; June 10, 2003). Final Act. 2-18.
Claim 9 stands rejected under 35 U.S.C. § 103 as obvious in view of
Robinson, Watkins, Visser, and Albright (US 2,944,101; July 5, 1960).
Final Act. 18.
ANALYSIS
THE OBVIOUSNESS REJECTION OF CLAIMS 1, 3, 5-8, 10-12, 14, AND 16-20
The Examiner finds Robinson teaches or suggests every limitation
recited in independent claim 1, except that (i) the body ( of the viewing
window) has a curved portion, (ii) the lens assembly is disposed on the
curved portion of the body, (iii) the lens is curved, (iv) the grilles are curved,
and ( v) the apertures on the front grille are spaced apart further than the
apertures on the rear grille. Final Act. 3-5 ( citing Robinson ,r,r 2, 5, 7, 16,
3
Appeal2018-000958
Application 14/074,897
29, Abstract, Fig. 3). The Examiner finds Watkins' plane body with window
openings teaches the recited body having a curved portion, Watkins' curved
window and its support structure teaches the recited lens assembly disposed
on the curved portion, Watkins' curved window teaches the recited curved
lens, and Watkins' curved grid and wire on both sides of the window teach
the recited curved front and rear grilles. Final Act. 5 ( citing Watkins 1: 1--4,
2:7-12, Figs. 1-3). Of particular note to this Appeal, the Examiner finds
Visser's channels for transmitting light from a light source that have a larger
radius on the "outer layer" than the smaller radius on the "inner layer" teach
or suggest the recited limitation that the front grille has apertures spaced
further apart than the rear grille's apertures. Final Act. 6 ( citing Visser 7: 1-
10, Figs. 4--5); Ans. 5-10 (citing Visser 6:55---61, Figs. 3-5). The Examiner
provides reasons for combining the cited teachings and concludes
Appellant's claims would have been obvious. Final Act. 5---6.
Appellant argues the proposed combination does not render obvious a
"first plurality of viewing apertures of said front grille are spaced further
apart than said second plurality of viewing apertures of said rear grille are
spaced apart" because Robinson teaches away from this limitation and
because Visser fails to teach the limitation. Br. 8-13.
Teaching Away
First, Appellant argues Robinson teaches away from viewing
apertures with different spacing on the front and rear grilles because
Robinson discloses the front and rear grilles are substantially the same as
each other with holes that "are substantially the same size, are spaced a
uniform distance apart and arranged in a tessellation." Br. 8-9 ( quoting
Robinson ,r 29). Appellant contends this disclosure would teach a person of
4
Appeal2018-000958
Application 14/074,897
ordinary skill in the art that both grilles should have equally sized and
spaced apart holes and, therefore, Robinson teaches away from modifying
the uniform size and spacing. Br. 9.
Contrary to Appellant's arguments, Br. 8-9, Robinson does not teach
away from Appellant's claimed invention. "A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant." Ricoh Co., Ltd. v. Quanta Computer, Inc., 550 F.3d 1325, 1332
(Fed. Cir. 2008) ( citations omitted). "[T]he 'mere disclosure of more than
one alternative' does not amount to teaching away from one of the
alternatives where the reference does not 'criticize, discredit, or otherwise
discourage the solution claimed."' SightSound Techs., LLC v. Apple Inc.,
809 F.3d 1307, 1320 (Fed. Cir. 2015) (quoting In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004)).
Robinson does not criticize or discredit the claimed solution, but
merely provides one solution for a viewing window assembly. See generally
Robinson. Robinson's solution provides a viewing window assembly that
aligns apertures of a front and rear grille to transmit light through a flat
window assembly way. See Robinson ,r 29, Figs. 1-3, Abstract. Notably,
Appellant omitted the end of the sentence relating to Robinson's discussion
of the holes in the grilles. See Br. 9 ( quoting Robinson ,r 29). Specifically,
Robinson discloses "the holes are substantially the same size, are spaced a
uniform distance apart ... so that they protect the [l]ens but do not interfere
with the infrared viewing therethrough." Robinson ,r 29 (emphasis added).
In other words, the reason for having holes substantially the same size and
5
Appeal2018-000958
Application 14/074,897
spaced a uniform distance apart is so that infrared light can be transmitted
through the viewing window assembly. Apertures of substantially the same
size and spaced apart uniformly accomplish this goal in a flat lens and
viewing window assembly, but the same is not true for a curved lens and
viewing window assembly. Therefore, regardless of whether Robinson
teaches away from having apertures spaced further apart on one grille than
on the other grille in ajlat assembly, Robinson does not teach away from
such an arrangement in a curved assembly. In fact, as discussed further
below, Robinson's teaching that the sets of holes on the two grilles must be
optically aligned would have led an ordinarily skilled artisan to determine
uniform size and spacing would not work for a curved lens.
Visser 's Teachings
Second, Appellant argues Visser fails to teach many elements of the
claims. Br. 9-11. Appellant characterizes the Examiner's rejection as
finding "'the outer layer with a larger radium' equates to a front grill, and
'an inner layer with a smaller radium' equates to the rear grille." Br. 9
(quoting Final Act. 6). Appellant argues Visser's filter "does not contain
separate parts." Br. 9. Appellant further contends Visser fails to teach or
suggest (i) the filter would equate to two separate curved grilles that could
support a curved lens, (ii) anything that "would equate to a curved lens," and
(iii) "something, such as a lens, would be located between 'the outer layer
with a larger radium' and the inner layer with a smaller radium'." Br. 9-11
( quoting Final Act. 6). Appellant further argues there is no evidence
Visser's channel structures contain the claimed apertures and, at most, a
channel has a single aperture. Br. 11.
6
Appeal2018-000958
Application 14/074,897
Non-obviousness cannot be established by attacking references
individually where, as here, the ground of unpatentability is based upon the
teachings of a combination of references. In re Keller, 642 F.2d 413, 426
( CCP A 1981 ). Rather, the test for obviousness is whether the combination
of references, taken as a whole, would have suggested the patentee's
invention to a person having ordinary skill in the art. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986).
To the extent Appellant argues Visser fails to teach or suggest the
recited grilles or lens, Appellant's arguments are not persuasive of error
because they are not responsive to the Examiner's rejection. As Appellant
notes, "the Examiner [finds] that Fig[ ure] 4 of Visser teaches that the first
plurality of viewing apertures of the front grille should be spaced further
apart than the second plurality of viewing apertures of the rear grille are
spaced apart." Br. 9. Here, the Examiner relies on the combined teachings
and suggestions of Robinson and Watkins to teach the recited grilles and
lens, and the Examiner relies on Visser only to teach the apertures on the
concave surface of a curved lens are spaced further apart than apertures on
the convex surface of that lens in order to transmit light from one side of a
lens to the other. See, e.g., Final Act. 3---6. Appellant's arguments directed
to the grilles and lens, therefore, are directed to the teachings of the
references individually rather than taken together as a whole.
Appellant also argues the radii of Visser's channels are smaller
towards the middle of the filter than towards the outer periphery of the filter.
Br. 11. Appellant asserts Visser' s apertures, therefore, get smaller radially
but not axially (i.e., not as the filter extends along Visser's optical axis
(OA)). Br. 11-12.
7
Appeal2018-000958
Application 14/074,897
Appellant further asserts the claimed "front grille" must be Visser' s
filter face closest to the light source (LA) and the claimed "rear grille" must
be Visser's filter face furthest from the light source. Br. 11; see also Br. 12
( arguing that, to a person of ordinary skill in the art, "the portion of the filter
that is closer to the light source LA would be considered to be the 'front
grill', because assumingly the light would pass through the front first. The
'front grille' portion of filter 11 as shown in Fig. 3 is concave in shape.").
Appellant argues, to the extent Visser' s channel structures change size as
they extend axially, the channel structures get larger ( or further spaced apart)
and, therefore, Visser' s "apertures of the rear grille would be spaced further
apart than the apertures of the front grille are spaced apart." Br. 11-13.
Appellant asserts this is the opposite of what is claimed. Br. 11-12.
Appellant concludes that Visser, therefore, fails to teach or suggest "a
first plurality of viewing apertures in a front grille that are spaced further
apart than the second plurality of viewing apertures in a rear grille are
spaced apart." Br. 13.
These arguments are directed to alleged deficiencies with respect to
Visser' s teachings. Therefore, we begin by reviewing Visser.
Visser describes a "lithographic projection apparatus" with "a
discharge plasma radiation source" that "generate[ s] a beam of EUV
radiation in a vacuum chamber. Visser Abstract. Of particular relevance to
the Examiner's rejection, Visser includes a "filter having a channel structure
11," which is made up of "adjacent narrow channels 12 separated by walls
that are substantially parallel to a propagation direction of radiation emitted
by radiation source LA." Visser 6:55---61. The propagation direction is
"substantially directed along the optical axis OA" and the "channel structure
8
Appeal2018-000958
Application 14/074,897
passes the EUV radiation emitted by the source" from one vacuum chamber
(through filter 11) to another vacuum chamber. Visser 6:61---63; see Visser
1 :9--12, 3:7-39, 6:54--63, Figs. 3-5, Abstract.
A portion of Figure 3 and Figure 4 are reproduced below side-by-side.
Figure 3 depicts the two chambers separated by filter 11, with radiation
source LA in upper chamber 10 with optical axis OA extending from LA
through filter 11 to lower chamber 20. Figure 4 depicts a portion of filter 11
in relation to radiation source LA and optical axis OA.
+'\o i
,,.,.. :I
:'rLA
'\)~/~
I
I
}~ v"
lL \
fr \
Visser Figs. 3--4. As seen by comparing the figures, Figure 4 depicts filter
11 "upside down" relative to its orientation in Figure 3, such that the convex
surface of filter 11 faces "down" in Figure 3, but the convex surface of filter
11 faces "up" in Figure 4.
Figure 4 depicts only a portion of filter 11. Specifically, the channels
closest to the middle of filter 11 are not shown and only approximately one
9
Appeal2018-000958
Application 14/074,897
quarter of filter 11 is shown. Visser 7:14--16, 8:32-33; Fig. 4. Figure 4 also
identifies individual channels 12, which are segments of filter 11 that have
approximately rectangular 2-dimensional faces. As seen in Figure 4, each of
the depicted channels has the same radial width Wr and channels at the same
radial distance from the optical access have the same tangential width ( e.g.,
the tangential width of the channels at the outer periphery of filter 11 is Wt).
Visser discloses "radiation is sort of radially emitted from the
elongated region LA." Visser 7:5---6. In order to increase transparency of
filter 11, "the width of the channels ... increases along the optical axis OA
in the propagation direction of the radiation, both in the plane of the drawing
[of Figure 3] and in a plane perpendicular to the plane of the drawing" of
Figure 3. Visser 7:6-11. In other words, Visser's channels 12 are larger
(and therefore spaced further apart) further from radiation source LA (i.e.,
on the convex side of filter 11) than they are closer to radiation source LA
(i.e., on the concave side of filter 11 ). Because Visser explicitly discloses
channel widths increasing along optical axis OA in the radiation propagation
direction, we disagree with Appellant's argument that Visser does not teach
channels having apertures whose size (and spacing) changes axially, see
Br. 11-12.
We are also unpersuaded by Appellant's argument that Visser's
concave surface of filter 11 is equivalent to the recited "front grille" because
that side of filter 11 is closer to the light source, see Br. 11-12. We note that
"front" and "rear" are simply labels on the two different grilles recited in
Appellant's claims. Nothing in the claims requires the front grille to be
closer to the light source or the rear grille to be further from the light source.
For that reason alone, we disagree that Visser's concave surface (i.e.,
10
Appeal2018-000958
Application 14/074,897
Visser' s surface closer to its light source) must be similar to the "front"
grille.
Moreover, to the extent Appellant argues the claims require the "front
grille" to be the grille on the convex side of the lens, the same reasoning
would have led a person of ordinary skill in the art modify Robinson-
Watkins with Visser's teachings to space the apertures on the convex side of
the lens further apart than on the concave side of the lens. Specifically, both
the Specification and Visser teach spacing apertures differently on the two
faces of a lens having one concave surface and one convex surface to
optically align the apertures.
The Specification explains that the purpose for having different
aperture spacing in the front grille than the rear grille is to "maintain a
normal line-of-sight through the full viewing angle of the viewing
apertures." 10:1-11:10. The Specification explains that "the radius of
curvature of the front grille 3 84 is dimensioned so that it is larger than the
radius of curvature of the rear grille 300." Spec. 10:2-3. Additionally, "the
thickness of the frame sections 395 (i.e. spacing between the viewing
apertures 350 and 390) defining the viewing apertures 390 of the front grille
384 are made thicker than the frame sections 394 that define the viewing
apertures 350 of the rear grille 300." Spec. 10:4---6. By using greater
spacing between apertures on the grille with the larger of radius of curvature
than the spacing between apertures on the grille with the smaller radius of
curvature, "viewing apertures 350 and 390 are provided in an aligned
arrangement, so that the passage of the IR, UV, and visible light through the
viewing apertures 350 and 390 of the lens assembly 260 is maximized."
Spec. 10:6-10.
11
Appeal2018-000958
Application 14/074,897
Similarly, as discussed above, Visser explains that the purpose of the
channel width increasing along the optical axis in the propagation direction
of the emitted radiation is to increase transparency of filter 11. Visser 7: 6-
11. The Examiner explains Visser teaches spacing channels on the convex
surface of a curved structure further apart than the channel spacing on the
concave surface of the curved structure so that the channel is optically
aligned (i.e., to increase transparency of the channels in the propagation
direction of light source LA). Final Act. 6 ( describing that Visser' s "outer
layer" has a larger radius than Visser's "inner layer), 22-23 (finding Visser
teaches varied spacing on the two surfaces of Visser' s curved optical filter
11 are in optical alignment (citing Fig. 4)); Ans. 6 ("Visser teaches optical
paths in curved optical alignment."), 7 (finding the Robinson-Watkins
combination teaches the lens and grilles whose "apertures on the front and
rear curved grilles constitute optical light paths for light to transmit through
the curved lens" and Visser teaches "channels in curved layer structure of an
optical element, wherein the optical light paths" have apertures with spacing
further apart on the concave face of filter 11 than on the convex face); see
Visser 7:6-11. The Examiner further explains the reason for combining
Visser' s teaching of larger spacing on a concave face of an optical element
than on the convex face of the optical element is to transmit light from an
input aperture of each channel (i.e., optical light path) to the output aperture
of that channel. Ans. 8.
Therefore, Visser and the Specification describe similar purposes (i.e.,
optical alignment) and solutions (i.e., further spacing on the concave face of
the optical element than on the convex face) to accomplish these purposes.
We agree with the Examiner that a person of ordinary skill in the art would
12
Appeal2018-000958
Application 14/074,897
have modified Robinson-Watkins to include Visser's teaching regarding
optical light paths in curved optical elements to space apertures further apart
on the concave face of the lens than on the convex face of the lens.
Appellant's Other Arguments
As reflected in the Transcript of Oral Hearing, Appellant raised
various arguments, ranging from non-analogous art to insufficient rationale
for combining the cited teachings, at the oral hearing that were not included
in Appellant's Appeal Brief. See generally, Tr. "At the oral hearing,
appellant may only ... present argument that has been relied upon in the
brief or reply brief' unless Appellant has demonstrated a showing of good
cause for relying "on a new argument based upon a recent relevant decision
of either the Board or a Federal Court." 37 C.F.R. § 4I.47(e). Appellant did
not file a reply brief. Accordingly, we do not consider arguments Appellant
raised at oral argument but did not present in the Appeal Brief.
Summary
For the reasons discussed above and on this record, we are not
persuaded the Examiner erred in rejecting independent claim 1. Appellant
does not argue any of the other claims separately with particularity. Instead,
Appellant states the arguments presented for claim 1 apply to commensurate
limitations recited in independent claims 12 and 20. Br. 13-14. Thus, for
the same reasons discussed above, we are not persuaded the Examiner erred
in rejecting independent claims 12 and 20. Nor are we persuaded the
Examiner erred in rejecting claims 3, 5-8, 10, 11, 14, and 16-19, which
ultimately depend from either claim 1 or claim 12. Accordingly, we sustain
the Examiner's rejection of claims 1, 3, 5-8, 10-14, and 16-20.
13
Appeal2018-000958
Application 14/074,897
THE OBVIOUSNESS REJECTION OF CLAIM 9
The Examiner rejects claim 9 as obvious under 35 U.S.C. § 103 as
obvious in view of Robinson, Watkins, Visser, and Albright. Final
Act. 18-19. Appellant does not argue claim 9 separately with particularity.
Therefore, for the reasons discussed above, we are not persuaded the
Examiner erred in rejecting claim 9 as obvious in view of Robinson,
Watkins, Visser, and Albright, and we sustain the Examiner's rejection of
claim 9.
DECISION
We affirm the Examiner's decision to reject claims 1, 3, 5-12, 14, and
16-20 under 35 U.S.C. § 103 as obvious.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l); see 37 C.F.R.
§ 4I.50(f).
AFFIRMED
14