Intevac, Inc.

Patent Trials and Appeals Board

May 26, 2020

2019004335 (P.T.A.B. May. 26, 2020)

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.
14/805,418 07/21/2015 David Ward Brown 048635-121000 9945
146807 7590 05/26/2020
WOMBLE BOND DICKINSON (US) LLP
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30537-7037
EXAMINER
MCDONALD, RODNEY GLENN
ART UNIT PAPER NUMBER
1794
NOTIFICATION DATE DELIVERY MODE
05/26/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
IPDocketing@wbd-us.com
Joseph.Bach@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID WARD BROWN, CHARLES LIU, and JUN XIE
Appeal 2019-004335
Application 14/805,418
Technology Center 1700
Before JEFFREY R. SNAY, LILAN REN, and JANE E. INGLESE,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 11–30. See Final Act. 3. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as “Intevac, Inc.”
Appeal Br. 2.
Appeal 2019-004335
Application 14/805,418

2
CLAIMED SUBJECT MATTER
The claims are directed to “glass coating that improves scratch
resistance and hydrophobic/oleophobic properties for use in, for example,
touch screen displays.” Spec. ¶ 2. Claim 11, reproduced below, is illustrative
of the claimed subject matter:
11. A method for providing protective coating on a front
surface of a glass, comprising:
forming a diamond-like coating over the front surface of
the glass;
performing passive sputtering, wherein only material from
a silicon sputtering target is deposited on the diamond-like
coating, so as to form a silicon protective layer directly on the
diamond-like coating;
performing reactive sputtering to form an adhesion layer
directly on the silicon protective layer; and
forming an anti-finger print layer directly over the
adhesion layer.
Claims Appendix (Appeal Br. 12).
REFERENCES
The prior art relied upon by the Examiner are:
Name Reference Date
Kimock
McLeod
Thomsen
US 5,637,353
US 6,290,821
US 6,808,606 B2
June 10, 1997
Sept. 18, 2001
Oct. 26, 2004
Demaray
Mashimo
Akao
Noguchi
US 2002/0134671 A1
US 2015/0138638 A1
JP02013155399A
JP02008096828A
Sept. 26, 2002
May 21, 2015
Aug. 15,2013
Apr. 24, 2008

Appeal 2019-004335
Application 14/805,418

3
REJECTIONS
Claims 11, 12, 13, 19, 20, and 23 are rejected under 35 U.S.C. § 103
as being unpatentable over Kimock in view of Demaray, McLeod, and
Mashimo. Final Act. 3.
Claims 14–18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kimock in view of Demaray, McLeod, Mashimo, and
Akao. Final Act. 6.
Claim 21 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kimock in view of Demaray, McLeod, Mashimo, and Noguchi. Final Act. 7.
Claim 22 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kimock in view of Demaray, McLeod, Mashimo, and Thomsen. Final Act.
8.
Claims 24 and 30 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kimock in view of Mashimo. Final Act. 9.
Claims 25–29 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kimock in view of Mashimo, and Demaray. Final Act. 10.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Cf. Ex parte Frye, 2010 WL 889747, *4 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After having considered
the evidence presented in this Appeal and each of Appellant’s contentions,
we are not persuaded that reversible error has been identified, and we affirm
Appeal 2019-004335
Application 14/805,418

4
the Examiner’s § 103 rejections for the reasons expressed in the Final Office
Action and the Answer. We add the following primarily for emphasis.
Claim 11
Appellant argues that the Examiner reversibly erred in rejecting claim
11 because, according to Appellant, “the second interlayer (top layer 4) of
Kimock cannot be reasonable [sic.] read as the claimed protective layer and
the second DLC layer (top layer 3) cannot be read as the claimed adhesion
layer.” Appeal Br. 6. Appellant argues that “Kimock teaches that the
adhesion layer 4 is an oxide or a nitride layer, which is formed by chemical
vapor deposition, not passive sputtering” and that a skilled artisan “would
understand that the second interlayer 4 of Kimock is actually similar to the
adhesion layer of the subject Application, not the claimed protective layer.”
Id. at 7.
We are not persuaded by this argument first and foremost because
Appellant does not direct us to a definition of the recited “protective layer”
and “adhesion layer” that would exclude the prior art layers. Appellant does
not structurally distinguish the prior art layers from the recited “protective”
and “adhesion” layers. “‘Functional’ terminology may render a claim quite
broad. By its own literal terms a claim employing such language covers any
and all embodiments which perform the recited function.” In re Swinehart,
439 F.2d 210, 213 (CCPA 1971). Appellant’s argument is unpersuasive also
because it does not address the Examiner’s finding that Kimrock 4:61–67
and 5:1–9 “teach that the interlayers can be ‘chemically vapor deposited’
and that ‘chemically vapor deposited’ covers magnetron sputtering” in
Appeal 2019-004335
Application 14/805,418

5
support of the rejection. Ans. 13.2 Lastly, we are not persuaded because the
argument is not supported by evidence. “Attorneys’ argument is no
substitute for evidence.” Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed.
Cir. 1989).
Appellant next argues that the Examiner reversibly erred for failing to
provide an explanation as to why a skilled artisan would have combined the
references. Appeal Br. 8. Appellant, however, does not address the
Examiner’s rationale articulated in the Final Action in support of the
rejection. For example, the Examiner cites Demaray ¶ 19 for the teaching of
“producing dense amorphous silicon layers,” McLeod at 7:37–44 for the
teaching of “reactively sputtering DLC,” Mashimo ¶ 11 for the teaching of
“producing optical elements,” and finds that a skilled artisan would have
combined the references “because it allows for producing dense amorphous
silicon layers, reactively sputtering DLC and for producing optical
elements.” Final Act. 5. The Examiner also explains that a skilled artisan
would have combined Kimock with Demaray because Kimrock teaches
“forming silicon layers by sputtering,” whereas Demaray teaches a
sputtering process. Ans. 14 (citing Kimrock 4:61–67 and 5:1–9). The
Examiner also states that a skilled artisan would have combined the
references because “each reference provides guidance on how to deposit the
various layers to produce coated substrates.” Id.
Appellant’s argument that “Mashimo does not mention the problem
that forming an AFC layer over a DLC layer causes” (Appeal Br. 9) is
unpersuasive. First and foremost, Appellant’s statement that it “is well

2 No Reply Brief was filed.
Appeal 2019-004335
Application 14/805,418

6
known” that “a DLC layer is slippery and therefore an AFC layer would not
adhere well to the DLC” is unsupported by evidence. Id. The argument is
unpersuasive also because it is not commensurate in scope with claim 11 –
which requires no more than the recited steps without any particular
parameter or degree of adhesion achieved by the adhesion layer.
Claim 12
Claim 12 depends from claim 11 and further recites “wherein the
passive sputtering is performed using argon gas, and the silicon sputtering
target consisting of silicon.”
Appellant argues that the Examiner reversibly erred for failing to
provide a rationale to combine the references. Appeal Br. 9. We are not
persuaded by this argument because it does not address the Examiner’s
rationale in support of the rejection. Compare id., with Final Act. 5 (citing
Demaray ¶ 19, McLeod at 7:37–44 and Mashimo ¶ 11 in support of the
reason to combine the references); see also Ans. 14 (citing Kimrock 4:61–67
and 5:1–9 in support of the reason to combine).
Appellant’s unelaborated statement that “using argon sputtering of
silicon target one cannot form the silicon-oxide layer required by Kimock”
(Appeal Br. 9) is unpersuasive as it lacks factual support. The rejection of
claim 12 is therefore sustained.
Claim 13
Claim 13 depends from claim 12 and further recites “wherein the
reactive sputtering is performed using a target consisting of silicon while
injecting at least one of oxygen and nitrogen gas.”
Appellant argues that the Examiner reversibly erred in finding that
Kimrock discloses using silicon dioxide for the outermost layer. Appeal Br.
Appeal 2019-004335
Application 14/805,418

7
9. Appellant, however, does not address the Examiner’s finding of
Mashimo’s teaching that “silicon dioxide and DLC are listed as
equivalents.” See Ans. 15 (citing Mashimo ¶ 106). No reversible error has
therefore been identified in the Examiner’s factual findings in support of the
rejection of claim 13.
Claim 14
Claim 14 depends from claim 11 and recites “further comprising
hydrogenating the adhesion layer prior to forming the anti-finger print
layer.”
Appellant’s argument that Akao does not teach to “hydrogenate the
SiO2 layer, as claimed” (Appeal Br. 9) is unpersuasive because it is
incommensurate in scope with the claim language, which does not recite a
silicon oxide layer but an “adhesion layer.” As the Examiner finds, Akao
teaches “using steam for hydrogenating an adhesion layer prior to forming
an anti-fingerprint layer.” Final Act. 6 (citing Akao Abstract); see also Ans.
16. The rejection of claim 14 is therefore sustained.
Claim 17
Appellant does not present an argument for the rejection of claim 17.
See Appeal Br. 9–10. The rejection of claim 17 is sustained as a result.
Claim 24
Claim 24 is an independent method claim “similar to claim 11 in that
it also requires the forming of DLC over the substrate, a silicon layer
directly over the DLC, an adhesion layer directly over the silicon layer, and
an AFP layer directly over the adhesion layer.” Appeal Br. 10. Appellant
repeats the same arguments for claim 24 as those for claim 11, which we
addressed supra. See id (arguing, for example, that the Examiner erred for
Appeal 2019-004335
Application 14/805,418

8
reading “Kimock’s interlayer 4 on the claimed oxide layer and top DLC
layer 3 on the claimed adhesion layer”). The rejection of claim 24 is
sustained for the reasons provided supra with regard to claim 11.
Claims 25–27
Appellants list claims 25, 26, and 27 individually and repeats the
argument that Kimrock “does not disclose forming a silicon layer.” Appeal
Br. 10–11. As noted supra, Appellant’s argument does not address the
Examiner’s finding that Kimorck 4:61–67 and 5:1–9 teaches “forming
silicon layers by sputtering.” See Ans. 16. The rejection of claims 25–27 is
accordingly sustained.
Remaining Claims
Appellant does not separately argue for remaining claims and the
rejections of these claims are sustained. See Appeal Br. 4–11; see also 37
C.F.R. § 41.37(c)(1)(vii).
CONCLUSION
The Examiner’s rejections are affirmed.
More specifically,
Appeal 2019-004335
Application 14/805,418

9
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
11, 12, 13,
19, 20, 23
103 Kimock, Demaray,
McLeod, Mashimo
11, 12, 13,
19, 20, 23

14–18 103 Kimock, Demaray,
McLeod, Mashimo,
Akao
14–18
21 103 Kimock, Demaray,
McLeod, Mashimo,
Noguchi
21
22 103 Kimock, Demaray,
McLeod, Mashimo,
Thomsen
22
24, 30 103 Kimock, Mashimo 24, 30
25–29 103 Kimock, Mashimo,
Demaray
25–29
Overall
Outcome:
  11–30

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED