Ex Parte Scott et al

Board of Patent Appeals and Interferences

Mar 12, 2003

09699539 (B.P.A.I. Mar. 12, 2003)

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written for publication and is not binding precedent of the Board.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. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte GARRETT L. SCOTT
and JAMES E. FENSTERMACHER
____________
Appeal No. 2002-2201
Application No. 09/699,539
____________
ON BRIEF
____________
Before OWENS, KRATZ and DELMENDO, Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 17-24. Claims 25-27, which are the only
other claims pending in this application, stand withdrawn from
further consideration by the examiner as drawn to a non-elected
invention.
Appeal No. 2002-2201
Application No. 09/699,539
Page 2
BACKGROUND
Appellants’ invention relates to an apparatus for forming a
cased glass stream that is used in glassware manufacture. An
understanding of the invention can be derived from a reading of
claim 17, which is reproduced below.
17. Apparatus for forming a cased glass stream having
an inner core glass surrounded by an outer casing glass,
said apparatus including:
a core glass source for delivering core glass through a
first orifice,
a housing forming a second orifice vertically spaced
beneath and aligned with said first orifice with a chamber
surrounding said second orifice and communicating with said
second orifice through a gap between said first and second
orifice,
a casing glass source for delivering casing glass to
said chamber, such that glass flows by gravity from said
sources through said orifices to form said cased glass
stream,
said casing glass source including a spout having an
outlet opening, and
a source of gas at continuous elevated pressure coupled
to said interior volume of said tube, and through said tube
to said opening, continuously maintaining said interior
volume of said tube at a pressure above ambient pressure
surrounding said spout.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Barkhau et al. (Barkhau) 4,740,401 Apr. 26, 1988
McCauley 114,583 Apr. 11, 1918
(Great Britain patent specification)
Appeal No. 2002-2201
Application No. 09/699,539
Page 3
1 While the examiner refers to claims 1-27 as being rejected
at page 3 of the answer, the inclusion of non-elected claims 25-
27 in the statement of rejection in the answer is considered to
be an inadvertent oversight as evident by a review of the final
rejection and item No. 7 of the answer.
2 We note that the examiner does not list or mention Kulig
(U.S. Patent No. 4,717,412) (final rejection, page 4) as a relied
upon reference in the answer. Nor has the examiner complained
that appellants’ briefs do not address Kulig. Accordingly, we do
not consider Kulig as evidence being relied upon by the examiner
in the rejection before us for review.
Claims 17-241 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Barkhau in view of McCauley.2
We refer to the brief and reply brief and to the answer for
a complete exposition of the opposing viewpoints expressed by
appellants and the examiner concerning the issues before us on
this appeal.
OPINION
Upon careful review of the respective positions advanced by
appellants and the examiner with respect to the rejection that is
before us for review, we find ourselves in agreement with
appellants’ viewpoint in that the examiner has failed to carry
the burden of establishing a prima facie case of obviousness.
See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1471-1472, 223
Appeal No. 2002-2201
Application No. 09/699,539
Page 4
USPQ 785, 787-788 (Fed. Cir. 1984). Accordingly, we will not
sustain the examiner’s rejection.
The examiner has determined that Barkhau discloses an
apparatus with associated orifices for forming a cased glass
stream from core and skin (casing) glass sources. The examiner
acknowledges that Barkhau does not disclose a spout, spout tube
for controlling casing glass delivery, and a gas source at
continuous elevated pressure coupled to the interior volume of
the spout tube, as here claimed. According to the examiner,
however:
[i]t would have been obvious to a person of ordinary
skill in the art at the time the invention was made to
add the flow orifice and tubular member of McCauley to
the apparatus of Barkhau et al because McCauley teaches
that the tubular member would have been helpful for
controlling the flow of glass through the flow orifice.
The glass feeder of McCauley, to which the examiner refers,
is constructed for transferring glass from an extension (2, FIG.
1) of a tank or furnace (1, FIG. 1) containing molten glass (14,
FIG. 1). The extension has a discharge orifice (upper edge 15 of
nozzle 16, FIG. 1) located at a height that is above the level of
the molten glass in the tank or furnace and a tubular member (19,
FIG. 1) associated therewith. In order to discharge molten
glass, McCauley employs a suction pump connected to a pipe (36,
Appeal No. 2002-2201
Application No. 09/699,539
Page 5
FIG. 1) via a valve (38, FIG. 1) to draw molten glass upward in
the extension above the level of the upper edge of the discharge
nozzle. Compressed air is connected to a pipe (35, FIG. 1) via a
valve (37, FIG. 1). The valves (38 and 37) are operated by an
arm (39, FIG. 1) and cam (41, FIG. 1) in what appears to be a
cyclical manner as evident by the construction thereof.
Here, the examiner has not reasonably explained why one of
ordinary skill in the art would have been led to employ the glass
feeder assembly of McCauley as a component of the apparatus of
Barkhau in a manner so as to arrive at the here claimed subject
matter. While the examiner asserts that such a feeder would be
helpful for controlling the flow of molten glass through an
orifice, the examiner has not explained how that feeder structure
would be applicable as an alternative or addition to the
apparatus of Barkhau. In this regard, we note that Barkhau
describes several apparatus embodiments and the examiner has not
established with any particularity how the combination of the
flow orifice and tubular member of McCauley would have been
suggested as being helpful in controlling molten casing glass
flow in any of the embodiments of Barkhau let alone established
how a modification of Barkhau resulting in the claimed structure
including a source of gas at continuous elevated pressure coupled
Appeal No. 2002-2201
Application No. 09/699,539
Page 6
to a casing glass spout tube interior would have been suggested
by the combined teachings of the references.
Accordingly, on this record, the rejection fails for lack of
a sufficient factual basis and analysis by the examiner upon
which to reach a conclusion of obviousness. See In re Fine,
837 F.2d 1071, 1073-74, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
CONCLUSION
The decision of the examiner to reject claims 17-24 under
35 U.S.C. § 103 as being unpatentable over Barkhau in view of
McCauley is reversed.
REVERSED
TERRY J. OWENS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
PETER F. KRATZ ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ROMULO H. DELMENDO )
Administrative Patent Judge )
Appeal No. 2002-2201
Application No. 09/699,539
Page 7
HOWARD G. BRUSS, ESQ.
OWENS-ILLINOIS
ONE SEAGATE, 25 LDP
TOLEDO, OH 43666