Ex parte SAUVINET et al.

Board of Patent Appeals and Interferences

Sep 18, 1997

07363758 (B.P.A.I. Sep. 18, 1997)

Application for patent filed July 10, 1989. According to1
appellants, this application is a continuation-in-part of
Application 06/821,365 filed January 22, 1986, now U.S. Patent
No. 4,859,499 granted August 22, 1989.
Administrative Patent Judge Waltz has been substituted2
for Administrative Patent Judge Thierstein who participated in
the hearing but retired prior to the rendering of this decision.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is not
binding precedent of the Board.
Paper No. 34
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte VINCENT SAUVINET, JEAN BLETRY, MICHELINE BONNAUD
and MAURICE TROUVE
__________
Appeal No. 93-2172
Application 07/363,7581
__________
HEARD: June 11, 1997
__________
Before JOHN D. SMITH, PAK and WALTZ , Administrative Patent2
Judges.
JOHN D. SMITH, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 93-2172
Application 07/363,758
The examiner’s final rejection inadvertently failed to3
treat claim 37, which claim was specifically rejected in the
Answer and denoted as a new rejection. Appellants’ Reply Brief
and concurrently filed amendment were denied entry by the
examiner.
2
This is an appeal pursuant to 35 U.S.C. § 134 from the final
rejection of claims 37 and 43-66. 3
Claims 37, 43, 46, 47 and 59 are representative and are
reproduced below:
37. A plate of glass coated with a layer containing indium
and tin oxides having zones of a low emissivity and resistivity
of less than or equal to 0.15 and 3 x 10 ohm-cm, respectively-4
for a thickness of between about 1800 and 4500 angstroms with at
least one other zone wherein the emissivity and resistivity are
higher than 0.15 and 3 x 10 ohm-cm, respectively that is-4
produced by:
preparing a dry metal composition containing indium formate;
mixing at least a powdered or gaseous tin compound or a
gaseous organotin compound with the indium formate in proportions
ranging from one to thirty weight percent;
depositing said composition onto a surface of a heated
substrate with coating means so as to pyrolyze the composition;
and
heating the coated substrate to enhance the properties of
the layer.
43. A plate of glass coated with a pyrolyzed metal oxide
layer comprising indium oxide formed by depositing a
predetermined amount of an organic indium compound on a heated
substrate, thereby pyrolyzing the indium compound.
Appeal No. 93-2172
Application 07/363,758
3
46. The glass plate of claim 45, wherein the thickness of
the layer is between about 1800 to 4500 Angstroms.
47. The glass plate of claim 46, wherein the electrical
properties of the layer comprise an emissivity of less than or
equal to 0.15 and a resistivity of 3 x 10 ohm-cm or less.-4
59. A plate of glass coated with a pyrolyzed metal oxide
layer comprising indium and tin oxides formed by depositing a
predetermined amount of a mixture of an organic indium compound
and a tin compound on a heated substrate, thereby pyrolyzing the
mixture.
The sole reference relied upon by the examiner is:
King et al. (King) 4,006,070 Feb. 1, 1977
The appealed claims stand rejected for obviousness (35
U.S.C. § 103) over King.
We reverse the rejection as to claims 37 and 51. We affirm
the rejection as to claims 43-50 and 52-66.
The subject matter on appeal is broadly directed to a glass
plate coated with a layer of indium oxide or indium and tin
oxides formed by pyrolyzing organic indium and/or tin compounds
on a heated glass substrate. Layers formed by the pyrolyzing
process have a low emissivity and good electrical conductivity.
As set forth in dependent claim 47 on appeal, the electrical
Appeal No. 93-2172
Application 07/363,758
Emissivity is defined as the ratio of the radiation4
intensity of a nonblackbody to the radiation intensity of a
blackbody. This ratio is always less than or just equal to one.
The emissivity characterizes the radiation or absorption quality
of nonblack bodies. Emissivities vary with temperature and also
vary throughout the spectrum. See the McGraw-Hill Encyclopedia
of Science & Technology, 7th Edition, copyright 1992, vol. 6, p.
339, copy attached. It is important that oxide coatings of tin
or indium on glass panes used in automobiles have a low
emissivity because in winter, loss of heat from the passenger
compartment of the vehicle is reduced, and in summer the addition
of heat from the exterior is also reduced. When these coatings
are to be supplied with electricity to act as heating layers they
typically have emissivities less than or equal to 0.15. See U.S.
Patent No. 4,584,236 to Colmon patented April 22, 1986 at column
1, lines 52-58; column 2, lines 33-43; and column 3, lines 17-21.
A copy of this patent is also attached.
4
properties of the layer are defined as having an emissivity of4
less than or equal to 0.15 and a resistivity of 3 x 10 ohm-cm-4
or less.
Based on product-by-process principles set forth in In re
Brown, 459 F.2d 531, 173 USPQ 685 (CCPA 1972) and In re Fessmann,
489 F.2d 742, 180 USPQ 324 (CCPA 1974), the examiner has rejected
each of the appealed claims for obviousness (35 U.S.C. § 103)
over King, a prior art reference, which describes a glass plate
coated with a metal oxide layer of indium and tin by a sputtering
technique, vis á vis a pyrolysis technique, as set forth in the
appealed claims. Appellants contend that the claimed recitation
of a “pyrolized” layer defines a structural bond between the
Appeal No. 93-2172
Application 07/363,758
Sauvinet opines that it is the “higher temperature of5
pyrolysis as compared to sputtering” which produces the greater
bonding strength. See paragraph 7 of the declaration.
5
layer and plate of glass and distinguishes the subject matter
defined by the claims from the sputter coated glass plates
described in King. In support of their argument, appellants rely
on a rule 132 declaration from co-inventor Sauvinet in which it
is stated that a pyrolyzed coating “is substantially more
strongly bonded to a substrate than a sputtered coating.” See
the declaration at paragraph 7. Sauvinet further states that the
greater strength of a pyrolyzed coating compared to a sputtered
coating has been confirmed by many tests in the field of
substrate coating. Sauvinet, however, fails to provide any
specific data regarding the alleged more strongly bonded
pyrolyzed coatings. Moreover, no bonding data is reported in the
Sauvinet declaration for an indium and tin oxide glass coated
substrate sputter coated under the controlled and relatively high
temperatures utilized by King. See King at column 3, lines 38-5
40 and column 5, lines 7-9. Accordingly, we agree with the
examiner that appellants have failed to provide objective factual
evidence that the product produced by King is structurally
different from the product claimed on appeal.
Appeal No. 93-2172
Application 07/363,758
6
When the prior art discloses a product which reasonably
appears to be either identical or only slightly different than a
product defined by a product-by-process claim, the burden is on
applicant to present objective evidence from which the examiner
may reasonably conclude that the claimed product differs
structurally from the prior art product. In this case,
appellants have failed to meet their evidentiary burden.
Certain appealed claims such as dependent claim 47 and
dependent claim 64 define the coated glass plate by reference to
electrical and optical properties. Specifically, the claimed
oxide coating is said to have a resistivity of 3 x 10 ohm-cm or-4
less in combination with an emissivity of less than or equal to
0.15. The King reference clearly describes the transparent
electrically conductive films formed by sputtering as having an
electrical resistivity of 3 x 10 ohm-cm or less. See Examples-4
2 and 4-6 and column 11, lines 18 and 19. Because the sputter
coated indium/tin oxide coating of King is produced by a method
similar to that utilized by appellants, utilizing a high
controlled temperature in an oxygen containing atmosphere to
produce a coating which is substantially colorless (column 11,
lines 19-21), there is a reasonable basis to presume that the
emissivity of King’s indium/tin oxide coating is identical to
Appeal No. 93-2172
Application 07/363,758
7
that claimed. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430,
433-34 (CCPA 1977). Moreover, as observed by the examiner,
appellants themselves have stated that “a high resistivity will
correspond to a high emissivity”. See appellants’ amendment
filed November 4, 1991 at page 5. Accordingly, a low resistivity
should correspond to a low emissivity. In the Brief at pages 11
and 12, appellants imply that their statement made in the
previous amendment was factually incorrect. Appellants now
contend that it is known that different thicknesses of metal
oxide layers will exhibit different colors in reflection and
therefore these different layers have different emissivities.
Thus, appellants now contend that different thicknesses of metal
oxide layers do not necessarily have different resistivities.
Appellants have not explained, however, how this argument applies
to the colorless films formed by the King process.
We also observe, as pointed out by the examiner, that King’s
metal oxide coated glass is intended to be used as a wind screen
wherein the film provides electrical resistance heating for
deicing or demisting. See the King reference at column 1, lines
9-16. In this regard, the examiner has stated that low
emissivities are known to be desirable when the coatings are used
as heating layers on wind screens. This factual assertion by the
Appeal No. 93-2172
Application 07/363,758
8
examiner has not been challenged by appellants. Thus, we also
agree with the examiner that it would have been obvious to one of
ordinary skill in the art to provide the coatings of King with
low emissivity. See the Answer at page 4. Also see footnote 4.
Appealed claims 37 and 51 stand on a different basis. These
claims define a plate of glass coated with an oxide layer having
zones of low emissivity and low resistivity and another zone
having a higher emissivity and resistivity. The examiner
contends that King discloses various zones within the coating
having different electrical properties and refers to the
reference generally at column 6. However, we find no specific
disclosure in this section of King which indicates that separate
zones should be formed wherein the emissivity and resistivity are
less than or equal to 0.15 and 3 x 10 ohm-cm in a first zone-4
and wherein the emissivity and resistivity are higher than 0.15
and 3 x 10 ohm-cm in a second zone as required by these claims. -4
Thus, we find that the disclosures of King alone are insufficient
to establish a prima facie case of obviousness for the subject
matter defined by appealed claims 37 and 51.
In light of the foregoing, we affirm the examiner’s
rejection of appealed claims 43-50 and 52-66. We reverse the
Appeal No. 93-2172
Application 07/363,758
9
examiner’s rejection as to claims 37 and 51. Therefore, the
decision of the examiner is affirmed-in-part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
JOHN D. SMITH )
Administrative Patent Judge)
)
)
)
CHUNG K. PAK ) BOARD OF PATENT
Administrative Patent Judge) APPEALS AND
) INTERFERENCES
)
)
THOMAS A. WALTZ )
Administrative Patent Judge)
Appeal No. 93-2172
Application 07/363,758
10
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