Ex Parte Zimmermann et al

Board of Patent Appeals and Interferences

Sep 7, 2010

10920826 (B.P.A.I. Sep. 7, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte CURTIS J. ZIMMERMANN,
JAMES D. CHRISTIE, VIVIAN K. DOXEY,
and DANIEL STEVENSON FULLER
__________

Appeal 2009-006775
Application 10/920,826
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, PETER F. KRATZ, and
MARK NAGUMO Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-006775
Application 10/920,826

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
finally rejecting claims 1-11 and 18-20,2 all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The subject matter on appeal is directed to a color effect material.
Claim 1, reproduced below, is illustrative.
1. A color effect material comprising a platelet-shaped
substrate sequentially encapsulated with:

a first layer which is highly reflective to light directed
thereon and which is selected from the group consisting of
silver, gold, platinum, palladium, rhodium, ruthenium, osmium,
iridium and alloys thereof; and

a second spacer layer which does not provide significant
incident angle dependent variable pathlength difference, said
spacer layer being selected from the group consisting of
chromium oxide, zinc oxide, zinc hydroxide, zirconium oxide,
zirconium hydroxide, zirconium nitride, titanium nitride, iron
hydroxide, polymethyl methacrylate, polyethylene
terephthalate, and high density polyethylene.

Br., Claims Appendix (emphasis added).3
According to the Appellants’ Specification the phrase “does not
provide a significant incident angle dependent variable pathlength difference
in accordance with Snell’s Law” means “does not result in more than 100
degrees of hue angle color travel.” Spec. 4:10-13. The Appellants disclose

2 Claims 12-17 are also pending but have been withdrawn from
consideration. See Office Action dated May 2, 2007, at 2.
3 Appeal Brief dated May 22, 2008.
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Appeal 2009-006775
Application 10/920,826

that one way to meet this requirement is to make the spacer layer suitably
thin. Spec. 4:14-15.
The only Examiner’s rejection on appeal is the rejection of claims 1-
11 and 18-20 under 35 U.S.C. § 103(a) as unpatentable over the combination
of Christie (US 6,325,847, issued December 4, 2001) and Bujard (US
5,766,335, issued June 16, 1998).
B. ISSUE
The Examiner found that Christie discloses a color effect material
comprising a platelet-shaped substrate encapsulated with:
(a) a first layer which is highly reflective to light directed thereon and
selected from the group of metals recited in claim 1;
(b) a second layer that provides a variable pathlength for light
dependent on the angle of incidence of light impinging thereon in
accordance with Snell’s Law; and
(c) a third layer that is selectively transparent to light directed thereon.
Ans. 3; Christie 1:52-62.
The Examiner found that Christie does not disclose that the second
layer is selected from the group of materials recited in claim 1. The
Examiner relies on Bujard to cure this deficiency. Ans. 4.
The Examiner found that Bujard discloses color effect materials
comprising a core (a) consisting of a metallic reflecting material, a coating
(b), and a coating (c). Ans. 44; Bujard 4:10-22. Bujard discloses that
coating (c) may be disposed between the core (a) and coating (b), and the
solid material of coating (c) includes some of the same metal oxides used for
the spacer layer recited in claim 1. Ans. 4; Bujard 4:26-29, 53-60.

4 Examiner’s Answer dated August 4, 2008.
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Appeal 2009-006775
Application 10/920,826

The Examiner concluded that it would have been obvious to one of
ordinary skill in the art to replace the material of the second layer in Christie
with a material of coating (c) in Bujard “to produce a color effect material
embodiment with alternative and/or improved use properties.” Ans. 4.
The Appellants argue, inter alia, that the combination of Christie and
Bujard does not teach or suggest the claimed subject matter. Br. 4. The
Appellants argue that the spacer layer recited in claim 1 “does not provide
significant incident angle dependent variable path length difference.” Br. 5.
The Appellants argue that Christie, on the other hand, discloses that the
second layer "must provide a variable pathlength for light dependent on the
angle of incidence of light impinging thereon." Br. 6; Christie 3:45-48.
Likewise, the Appellants argue that Bujard discloses that coating (c) has "a
high goniochromaticity," meaning "high color travel or hue change
depending on viewing angle," which is equivalent to Christie's second layer.
Br. 6; Bujard 8:17-20. Thus, the Appellants argue that substituting the
material of Bujard's coating (c) for the material of Christie's second layer
would result in a pigment having a high color travel which is contrary to the
claimed invention. Br. 6.
Based on the foregoing, the sole issue on appeal is:
Did the Examiner err in concluding that the combined teachings of
Christie and Bujard render obvious a color effect material comprising “a
second spacer layer which does not provide significant incident angle
dependent variable pathlength difference” as recited in claim 1?
C. DISCUSSION
The Examiner contends that the Appellants provide "no evidence to
show that the high goniochromaticity product of Christie et al. or Bujard et
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Appeal 2009-006775
Application 10/920,826

al. space [sic, spacer] layer (layer c) has a more than 100 degree of hue angle
color travel depending on the viewing angel [sic, angle]." Ans. 6 (emphasis
in original omitted).
The Examiner, not the Appellant, bears the initial burden of
presenting a prima facie case of unpatentability. In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). In this case, the Examiner does not direct us to
any disclosure in Christie that provides a reasonable basis for finding, in the
first instance, that the second layer of Christie does not result in more than
100 degrees of hue angle color travel. Likewise, the Examiner does not
direct us to any disclosure in Christie that provides a reasonable basis for
concluding that such a layer would have been obvious to one of ordinary
skill in the art.
As for Bujard, the Examiner finds that Bujard coating (c) is made of
the same material as the Appellants' spacer layer and has an overlapping
thickness. Ans. 6.
Bujard does disclose that the solid material of coating (c) includes
some of the same metal oxides recited in claim 1. However, the Examiner
does not direct us to any disclosure in Bujard describing the thickness of a
coating (c) made from any of these materials. Instead, Bujard discloses that
coating (c), in general, has a broad range of thicknesses, i.e., 0.1 to 200 nm.
Bujard 4:26-29, 35-38. The mere fact that Bujard discloses an overlapping
thickness for a broad range of materials is not sufficient to establish that
Bujard’s coating (c) results in the same color travel as the claimed spacer
layer. See Br. 6 (“While that broad thickness may indeed meet the thickness
of the claimed spacer layer, the thickness of the layer depends upon the
refractive index of the particular material that is used for the spacer layer.”).
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Appeal 2009-006775
Application 10/920,826

In sum, the Examiner has failed to demonstrate that the combined
teachings of Christie and Bujard render obvious a color effect material
comprising a spacer layer as recited in claim 1. For this reason, we reverse
the § 103(a) rejection on appeal.
D. DECISION
The decision of the Examiner is reversed.
REVERSED
tc

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