Ex Parte Schumacher et al

Patent Trial and Appeal Board

Nov 3, 2017

13404867 (P.T.A.B. Nov. 3, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/404,867 02/24/2012 Johann R. Schumacher 10-265-US 1009
20306 7590 11/03/2017
MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
300 S. WACKER DRIVE
32ND FLOOR
CHICAGO, IL 60606
EXAMINER
PIZIALI, ANDREW T
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
11/03/2017 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 JOHANN R. SCHUMACHER, STEVEN M. SCHULTZ,
STANLEY E. WILSON, and TARUN AMLA
____________

Appeal 2017-005328
Application 13/404,867
Technology Center 1700
____________

Before KAREN M. HASTINGS, JEFFREY R. SNAY, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL

Appellants1 request our review under 35 U.S.C. § 134(a) of a final
rejection of claims 1, 2, 4–11, 13, 14, 16, 17, and 29–31. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
Appellants’ claimed invention is generally directed to a laminate
comprising at least one copper foil sheet adhered by a cured resin to a resin-

1 Appellants identify the real party in interest as ISOLA USA CORP.
Appeal Brief filed August 1, 2016 (“App Br”), 1.

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impregnated woven glass fabric sheet. App. Br. 1–3. Claims 1 and 29
illustrate the subject matter on appeal and are reproduced below from the
Claims Appendix to the Appeal Brief:
1. A laminate comprising the combination of:
a base laminate including resin impregnated woven
glass fabric sheet having a first planar surface, a second
planar surf ace; and
at least one copper foil sheet that is adhered to a planar
surface of the fabric sheet material by a cured resin wherein
the base laminate thickness is from about 1.0 to about 1.75
mils the laminate has an average minimum dielectric
thickness of no less than about 0.75 mils and an average
maximum dielectric thickness no greater than about 1.5 mils.

29. A laminate comprising the combination of:
a base laminate including resin impregnated woven
glass fabric sheet having a first planar surface, a second
planar surface; and
at least one copper foil sheet that is adhered to a planar
surface of the fabric sheet material by a cured resin wherein
the base laminate thickness is from about 1.3 to about 1.75
mils wherein the base laminate thickness differs by no more
than 20% when measured at the center and each of four
corners of a 18 inch by 24 inch rectangular laminate sheet.

App. Br. 18–20 (Claims Appendix) (emphasis added).
The Examiner sets forth the following rejections in the Final
Office Action entered July 30, 2015 (“Final Act.”), and maintains the
rejections in the Answer entered December 14, 2016 (“Ans.”): I.
I. Claims 1, 2, 4, 5, 8–10, 16, 17, 29, and 30 under
35 U.S.C. § 102(b) as anticipate by, or, in the alternative, under
35 U.S.C. § 103(a) unpatentable over Lane et al. (US 6,333,384 Bl,
issued Dec. 25, 2001);
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II. Claims 1, 2, 4–11, 13, 14, 16, 17, and 29–31 under 35 U.S.C.
§ 103(a) as unpatentable over Lane in view of Haas et al. (US 245,696 Bl,
issued June 12, 2001); and
III. Claims 1, 2, 4–11, 13, 14, 16, 17, and 29–31 under 35 U.S.C.
§ 103(a) as unpatentable over Hoshi et al. (US 4,510,008, issued April 9,
1985) in view of Haas and Lane.
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants’ contentions, we affirm the Examiner’s rejection of
claims 1, 2, 4, 5, 8–10, 16, 17, 29, and 30 under 35 U.S.C. § 102(b) and
under 35 U.S.C. § 103(a), and rejections of claims 1, 2, 4–11, 13, 14, 16, 17,
and 29–31 under 35 U.S.C. § 103(a), for the reasons set forth in the Final
Action, the Answer, and below.
Rejection I
Appellants argue claims 1, 2, 4, 5, 8–10, 16, 17, 29, and 30 as a group
on the basis of claims 1 and 29, to which we limit our discussion. 37 C.F.R.
§ 41.37(c)(1)(iv). Appellants present separate arguments for claims 1 and
29, and also argue claims 1 and 29 together. App. Br. 8–11. Therefore, we
address Appellants’ common arguments for claims 1 and 29 based on claim
1, and we separately address claim 29.
Lane discloses electrical laminates useful for the production of printed
circuit boards that comprise a resin-impregnated reinforcing material. Lane
col. 10, ll. 1–7. Lane discloses that preferred electrical laminates comprise
woven e-glass fabric impregnated with a thermosetting polymer composition
or resin. Lane col. 11, ll. 24–30. Lane further discloses that the preferred
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laminates are clad on both sides with a copper foil. Id. Lane discloses that
the electrical laminates may be from about 0.001 to about 0.25 inches thick
(about 25.4 to about 6350 microns) (base laminate thickness). Lane col. 10,
ll. 40–42. Lane further discloses that the copper foil used to clad the
laminates may be a rolled, annealed copper foil, and the Examiner finds that
rolled copper foils are smooth and uniform in thickness. Lane col. 10, ll.
45–51; Final Act. 3.
Appellants’ Specification defines “dielectric thickness” as “the range
between the measured minimum and maximum thicknesses of the resin[-]
impregnated woven fabric material portion of the laminate.” Spec. 11.
Appellants’ Specification defines the “minimum dielectric thickness” as the
distance from the tip of the copper tooth or dendrite that extends the furthest
into the base laminate from the copper layer associated with one side of the
laminate, to the copper tooth or dendrite that extends the furthest into the
base laminate from the copper layer associated with the opposing side of the
laminate. Spec. 11–12. Appellants’ Specification defines the “maximum
dielectric thickness” as the distance from the first copper plane to the
opposing copper plane. Spec. 12.
The Examiner finds that because Lane discloses smooth copper foils
having uniform thickness, and further discloses a resin-impregnated woven
glass fabric having a thickness of about 0.001 inches (about 25 microns)
(base laminate thickness), Lane appears to inherently teach an average
minimum dielectric thickness of no less than about 0.75 mils (no less than
about 19 microns) and average maximum dielectric thickness no greater than
about 1.5 mils (no greater than about 38 microns), as recited in claim 1.
Final Act. 3–4. The Examiner thus implicitly takes the position that the base
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laminate thickness of the resin-impregnated woven glass fabric disclosed in
Lane would inherently be about the same as the minimum and maximum
dielectric thicknesses, because the copper cladding disclosed in Lane is
smooth and uniform in thickness, and thus would not result in a minimum
dielectric thicknesses differing markedly from the maximum dielectric
thicknesses.
Claims 1, 2, 4, 5, 8–10, 16, and 17
Appellants argue that Lane discloses treating the metal cladding
described in the reference to make it rough in order to improve its adhesion
to a laminate. App. Br. 9. Appellants contend that Lane, therefore, does not
disclose copper that is perfectly smooth, and the Examiner’s rejection thus
lacks “factual support.” App. Br. 9; Reply Br. 2–3.
However, the disclosure in Lane referred to by Appellants states that
conventional forms of metal cladding, such as rolled annealed copper,
typically are treated on one or both sides with additional metal of the same
or different types to promote increased adhesion to the laminate. Lane col.
10, ll. 45–56. Because Lane teaches that this treatment is merely typical,
and thus not required, Lane implicitly discloses rolled annealed copper foils
that are not subject to this treatment.
Moreover, Lane’s disclosure of this optional treatment does not
negate, or even detract from, Lane’s disclosures relied on by the Examiner
of preferred electrical laminates comprising woven e-glass fabric
impregnated with a thermosetting polymer composition or resin, and clad on
both sides with a copper foil, and Lane’s disclosure that the copper foil may
be a rolled annealed copper foil. Final Act. 3–4. Appellants’ arguments are
therefore unpersuasive of reversible error in the Examiner’s rejection.
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Appellants further argue that Lane is missing an express disclosure of
laminates made from woven fabrics having a thickness of about 0.001 inch
(about 25.4 microns), and Appellants contend that Lane thus does not
disclose a laminate having elements arranged as recited in claim 1. App. Br.
10–11.
However, Lane’s disclosure of a preferred electrical laminate
comprising woven e-glass fabric impregnated with a thermosetting
composition, which is clad on both sides with a copper foil, taken with
Lane’s disclosure that the electrical laminates described in the reference may
be about 0.001 inches thick (about 25.4 microns), provides sufficient
specificity to anticipate the laminate recited in claim 1. In re Schaumann,
572 F.2d 312, 317 (CCPA 1978) (in order to anticipate, a reference must
identify something falling within the claimed subject matter with sufficient
specificity to constitute a description thereof within the purview of § 102);
In re Petering, 301 F.2d 676, 681 (CCPA 1962) (it is well established that
specific examples of the claimed subject matter are not necessary to
establish anticipation. Rather, to anticipate, one skilled in the art must be
able to “at once envisage” the claimed subject matter in the prior art
disclosure).
Moreover, even assuming that Lane does not disclose a laminate
having elements arranged as recited in claim 1 as Appellants assert, Lane’s
disclosures (discussed above) would have nonetheless suggested the claimed
laminate. We accordingly sustain the Examiner’s rejection of claims 1, 2, 4,
5, 8–10, 16, and 17 under 35 U.S.C. § 102(b) and under 35 U.S.C. § 103(a).

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Claims 29 and 30
As set forth above, independent claim 29 recites that the base laminate
thickness differs by no more than 20% when measured at the center and each
of four corners of a 18 inch by 24 inch rectangular laminate sheet. The
Examiner takes official notice that printed circuit boards have uniform
thickness. Final Act. 5.
Appellants argue that the official notice taken by the Examiner—that
printed circuit boards conventionally have uniform thicknesses—is not
common knowledge because whether printed circuit boards have uniform
thickness depends upon how carefully and precisely the thickness is being
measured. App. Br. 10. Appellants further assert that the examiner has not
provided “sound technical reason to support the common knowledge
allegation.” Id.
However, in the Answer, the Examiner points out that official notice
was first asserted in an Office Action entered July 24, 2013, and the
Examiner asserts that Appellants did not traverse the official notice in
Appellants’ Reply to the official action, which was filed January 24, 2014.
Ans. 18. The Examiner further points out that due to Appellants’ failure to
traverse the Examiner’s assertion of official notice, the Examiner indicated
in the subsequent Office Action (entered March 6, 2014) that the official
notice was considered admitted prior art, in conformance with MPEP
§ 2144.03(C). Id.
Appellants argue in their Reply Brief that the following statements in
a Reply filed January 24, 2014 to the Office Action entered July 24, 2013,
expressly traversed the Examiner’s assertion of official notice:
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Claim 8 is directed to thickness properties of the base laminate.
The examiner concludes that claim 8 is anticipated by taking
official notice that “printed circuit boards conventionally have
uniform thickness.” The examiner’s rejection is technically
flawed because the official notice is unrelated to base laminate
thickness. Instead, the official notice deals with “printed circuit
board” thickness. Therefore, the examiners rejection of claim 8
for anticipation should be withdrawn because it is technically
flawed.
The examiner’s anticipation rejection of claim 8 should also be
withdrawn because it is factually flawed to the extent it is applied
to base laminates. Base laminates are planar objects that do not
have uniform thicknesses. Indeed, in many uses, the thickness
variation across a base laminate must be minimized in order to
ensure that certain laminate properties - e.g., time of travel of a
microwave though the laminate - remains constant across the
entire surface of the base laminate. Therefore, one of skill in the
art would not understand base laminates to have uniform
thicknesses.
Reply Br. 5 (citing p. 8, Section III(D) of the Reply filed January 24, 2014).
However, the above statements do not dispute that printed circuit
boards have uniform thickness. Rather, Appellants’ statements assert that
base laminates do not have uniform thicknesses. Accordingly, the relied-
upon portions of Appellants’ Reply filed January 24, 2014 do not traverse
the Examiner’s official notice that printed circuit boards have uniform
thickness. Because this finding is reasonable, and because Appellants did
not timely challenge it, “we accept it as fact.” In re Kunzmann, 326 F.2d
424, 425 n.3 (CCPA 1964).
Appellants further argue that the Examiner’s official notice regarding
printed circuit board thickness is unrelated to the subject matter of claim 29,
which is directed to a single layer laminate rather than a printed circuit
board. App. Br. 9–10. Appellants contend that the Examiner’s rejection of
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claim 29 is therefore “technically flawed.” App. Br. 10.
However, as discussed above, Lane discloses that the electrical
laminates described in the reference can be used for the production of
printed circuit boards. Because printed circuit boards were known in the art
to have uniform thickness (as discussed above based on the Examiner’s
official notice), one of ordinary skill in the art would have understood that
electrical laminates used to produce printed circuit boards would also have
uniform thickness. Appellants’ argument is therefore unpersuasive of
reversible error. We accordingly sustain the Examiner’s rejection of claims
29 and 30 under 35 U.S.C. § 102(b) and under 35 U.S.C. §103(a).
Rejections II and III
Claims 1, 2, 4–10, 16, 17, 29, and 30
Appellants argue Rejections II and III together, and argue claims 1, 2,
4–10, 16, 17, 29, and 30 as a group. App. Br. 11–15. Therefore, we select
claim 1 as representative, and decide the appeal of Rejections II and III as to
claims 1, 2, 4–10, 16, 17, 29, and 30 based on claim 1 alone.
Appellants contend that the Examiner relies on Haas in the Final
Action “for disclosing that it is conventional in the art to construct printed
wiring board copper clad fabric laminate[s] with planar surfaces and a
uniform layer thickness.” App. Br. 12. Appellants argue that Haas discloses
that a planar surface and a uniform layer thickness are possible only by using
non-woven reinforcing materials in printed wiring board copper clad fabric
laminates. App. Br. 11–12. Appellants argue that in view of this disclosure
in Haas, one of ordinary skill in the art would have been discouraged from
combining features of the bond ply (laminate) disclosed in Haas with a
laminate having woven fabric reinforcements, and Appellants contend that
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Haas therefore teaches away from its combination with Lane and Hoshi,
which both disclose laminates comprising woven reinforcement materials.
Id. Appellants further argue that because Haas discloses using non-woven
reinforcing materials to manufacture bond-ply layers, the Examiner’s
assertion that Haas discloses “fabric laminates” is factually flawed. App. Br.
12–13.
However, the Examiner clarifies in the Answer that the Examiner
relied on Haas in the Final Action “for teaching dependent claim
limitations,” and the Examiner relied on official notice as to the
conventionality in the art of constructing printed circuit boards with planar
surfaces and uniform thickness. Ans. 21. The Examiner further indicates in
the Answer that the Examiner “simply noted” in the Final Action that Haas
“also discloses that it is conventional in the art to construct [printed circuit
boards] PCBs with planar surfaces and a uniform thickness.” Id.
As the Examiner correctly finds, Lane discloses that suitable fabrics
for the electrical laminates described in the reference include veils, which
are thin non-woven fabrics, and Lane further explicitly discloses using
“woven or nonwoven” glass cloth to produce an electrical laminate. Ans.
21; Lane col. 9, ll. 58–67, col 12, ll. 9–14. As the Examiner also correctly
finds, Hoshi discloses copper-clad laminates for printed wiring boards that
comprise a fibrous substrate impregnated with a thermosetting resin, and
Hoshi discloses that suitable fibrous substrates include woven and nonwoven
fabrics made from glass fibers. Ans. 22; Hoshi col. 2, ll. 52–66, col. 5, ll. 3–
5. The Examiner relies on Haas for suggesting the limitations of claims 11,
13, 14, and 31 (including phenoxy in a resin and the diameter of glass
filaments in a woven glass fabric), discussed below.
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In view of Lane and Hoshi’s disclosures of laminates that can include
woven or nonwoven fabrics, Haas’ disclosure of using nonwoven
reinforcing materials in a bond-ply (Haas col. 2, ll. 53–57) would not have
discouraged one of ordinary skill in the art from applying the relied-upon
disclosures in Haas (including phenoxy in a resin and the diameter of glass
filaments in a woven glass fabric,) to laminates comprising woven
reinforcing materials, as disclosed in Lane and Hoshi. Therefore, contrary to
Appellants’ arguments, Haas does not teach away from applying the
disclosures in Haas relied-upon by the Examiner to the laminates disclosed
in Lane and Hoshi.
Accordingly, Appellants’ arguments2 are unpersuasive of reversible
error in the Examiner’s rejections of claim 1 under 35 U.S.C. § 103(a), and
we accordingly sustain the Examiner’s rejections of claims 1, 2, 4–10, 16,
17, 29, and 30 under 35 U.S.C. § 103(a).
Claim 11
Independent claim 11 recites that the resin of a resin-impregnated
woven glass fabric sheet of a base laminate includes a phenoxy resin flow
control agent in an amount ranging from more than 0 wt.% to about 2 wt.%
on a dry resin basis. The Examiner relies on experimental examples in Haas
that describe inclusion of phenoxy in a resin used to impregnate a nonwoven
reinforcing material in a bond-ply used to produce a circuit board. Final

2 We do not consider the new arguments presented at pages 6 to 7 of
Appellants’ Reply Brief because Appellants could have raised these
arguments in their Appeal Brief, and they do not show good cause for why
they did not do so. 37 C.F.R. § 41.37(c)(1)(iv); 37 C.F.R. § 41.41(b)(2)
(arguments raised for the first time in the Reply Brief that could have been
raised in the Appeal Brief will not be considered by the Board unless good
cause is shown).
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Act. 6, 10; Haas col. 7, l. 46–col. 10, l. 4.
Appellants argue that Haas’ experimental examples do not disclose a
resin including a phenoxy resin in an amount recited in claim 11. App. Br.
13–14. However, the Examiner finds in the Answer that because phenoxy
resin is a flow control additive, “it would have been obvious to one having
ordinary skill in the art to vary the additive weight percent, such as claimed,
based on the desired overall resin flow.” Ans. 23. Appellants do not dispute
these findings and conclusion in their Reply Brief. Reply Br. 8.
Therefore, in light of the Examiner’s uncontroverted finding that
phenoxy resin is a flow control additive, one of ordinary skill in the art
would have been led to include a phenoxy resin in the thermosetting resins
disclosed in Lane and Hoshi to control the flow of the resins, and would
have adjusted the amount of phenoxy included in the resins to achieve a
desired level of flow. In so doing, the ordinarily skilled artisan would have
arrived at the optimal amount of phenoxy resin, such as the amount recited
in claim 11, through nothing more than routine experimentation. In re
Boesch, 617 F.2d 272, 276 (CCPA 1980) (“[D]iscovery of an optimum value
of a result effective variable in a known process is ordinarily within the skill
of the art.”). We accordingly sustain the Examiner’s rejections of claim 11
under 35 U.S.C. § 103(a).
Claims 13, 14, and 31
Appellants argue claims 13, 14, and 31 as a group. App. Br. 14–15.
Therefore, we select claim 13 as representative, and decide the appeal of
Rejections II and III as to claims 13, 14, and 31 based on claim 13 alone.
Claim 13 depends from claim 1 and recites that “the woven glass
fabric sheet has no more than 2 glass filaments stacked over and under
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wherein the glass filaments have a diameter of from about 3 microns to
about 5 microns.”
The Examiner finds that Lane and Hoshi do not disclose the diameters
of the glass filaments used in the woven glass fabrics described in the
references. Final Act. 6, 11. The Examiner finds that it would have been
within the level of ordinary skill in the art to select a suitable diameter for
the glass filaments disclosed in Lane and Hoshi, such as a diameter recited
in claim 13, based on suitability for use in an electrical laminate and desired
characteristics. Id. The Examiner additionally finds that Appellants’
Specification does not disclose that the glass filament diameter recited in
claim 13 is unconventional or provides unexpected results. Id.
Appellants argue that the basis for the Examiner’s rejection is
“rebutted” by Haas’ disclosure that “bond-ply materials including a non-
woven reinforcing materials made from non-woven micro-fiber glass and
non-woven organic microfiber or pulp materials have fibers with diameters
about a factor of ten times smaller than are present in woven glass fabrics.”
App. Br. 15 (citing Haas col. 6, l. 63–col. 7, l. 6). Appellants contend that
this disclosure in Haas “explains that one of skill in the art would not
understand that woven fabrics can be made from glass fibers having any
diameters.” App. Br. 15.
However, rather than “rebutting” the basis for the Examiner’s
rejection, the disclosure in Haas quoted by Appellants actually supports the
Examiner’s position. Specifically, Haas discloses a bond-ply that includes a
nonwoven reinforcing material made from non-woven glass microfibers
having diameters smaller than 5 microns, and most preferably smaller than 1
micron. Haas col. 5, ll. 59–64; col. 6, ll. 63–64. Haas further discloses that
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the diameters of the microfibers are “about a factor of ten times smaller”
than fibers present in woven glass fabrics. Haas col. 6, ll. 63–67. As the
Examiner explains in the Answer, a glass microfiber diameter of 0.5 microns
is “smaller than a 1 micron.” According to Haas, the diameter of fibers
present in woven glass fabrics would be about ten times greater than the
microfiber diameter, or ten times greater than 0.5 microns, which is about 5
microns, and falls within the range of about 3 microns to about 5 microns
recited in claim 13. Ans. 24.
Appellants argue in the Reply Brief that one of ordinary skill in the art
would not have understood diameters smaller than 1 micron as disclosed in
Haas to “cover a diameter of 0.5 microns.” Reply Br. 9. However, we find
no indication in the evidence relied upon in this appeal that one of ordinary
skill in the art would not have understood micro-glass fibers having a
diameter smaller than 1 micron as disclosed in Haas to include fibers having
a diameter of 0.5 microns. Appellants do not direct us to any such evidence,
and Appellants’ unsupported arguments cannot take the place of objective
evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
Moreover, even assuming that one of ordinary skill in the art would
not have understood Haas to disclose glass filaments having diameters as
recited in claim 13, one of ordinary skill in the art seeking to produce an
electrical laminate as disclosed in Lane and Hoshi would have found it
necessary to determine an appropriate diameter for glass filaments used in
woven fabric reinforcing materials. It would have been within the level of
ordinary skill in the art to determine an appropriate diameter, such as recited
in claim 13. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416–417 (2007)
(the predictable use of prior art elements according to their established
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functions is likely to be obvious). Because Appellants do not demonstrate
the criticality of the glass filament diameter range recited in claim 13 (App.
Br. 15, Reply Br. 9), Appellants’ arguments are unpersuasive of reversible
error. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (indicating that
in cases in which the difference between the claimed invention and the prior
art is some range or other variable within the claims, “the applicant must
show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range.”).
We accordingly sustain the Examiner’s rejections of claims 13, 14,
and 31 under 35 U.S.C. § 103(a).
DECISION
In view of the reasons set forth above and in the Final Action and the
Answer, we affirm the Examiner’s rejection of claims 1, 2, 4, 5, 8–10, 16,
17, 29, and 30 under 35 U.S.C. § 102(b) and under 35 U.S.C. § 103(a), and
rejections of claims 1, 2, 4–11, 13, 14, 16, 17, and 29–31 under 35 U.S.C.
§ 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED