WACKER CHEMIE AG

Patent Trials and Appeals Board

May 20, 2020

2019004785 (P.T.A.B. May. 20, 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.
14/771,421 08/28/2015 Matthias VIETZ WASN0218PUSA 5837
22045 7590 05/20/2020
Brooks Kushman
1000 Town Center
22nd Floor
Southfield, MI 48075
EXAMINER
HIBBERT-COPELAND, MARY CATHERINE
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
05/20/2020 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):
docketing@brookskushman.com
kdilucia@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte MATTHIAS VIETZ and WERNER LAZARUS
________________

Appeal 2019-004785
Application 14/771,421
Technology Center 3700
________________

Before MICHAEL L. HOELTER, LISA M. GUIJT, and
LEE L. STEPINA, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

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STATEMENT OF THE CASE
Appellant1 filed a Request for Rehearing (“Req. Reh’g”) dated April
13, 2020 of the Decision on Appeal mailed February 20, 2020 (“Decision”).
This Decision affirmed the Examiner’s rejections of claims 12–22. See
Decision 11. Appellant submits this request because “it is evident that the
Board misunderstands the problems addressed by the invention” and further,
“that the claim 13 has been construed improperly.” Req. Reh’g 2.
Upon consideration of Appellant’s Request, we do not modify our
opinion.
A REQUEST FOR REHEARING
A request for rehearing “must state with particularity the points
believed to have been misapprehended or overlooked by the [Patent Trial
and Appeal Board, hereinafter “Board”].” See 37 C.F.R. § 41.52(a)(1). This
section also states that arguments not raised in the briefs before the Board
and evidence not previously relied upon in the briefs “are not permitted in
the request for rehearing except as permitted by paragraphs (a)(2) through
(a)(4) of this section.” In addition, a request for rehearing is not an
opportunity to express disagreement with a decision without setting forth
points believed to have been misapprehended or overlooked by the Board in
rendering its Decision. The proper course for an Appellant dissatisfied with
a Board decision is to seek judicial review, not to file a request for rehearing
to reargue issues that have already been decided. See 35 U.S.C. §§ 141, 145.

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 “Wacker
Chemie AG.” Appeal Br. 1.
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ANALYSIS
Appellant primarily presents arguments regarding sole independent
method claim 12, but also separately addresses dependent claims 13 and 22.
See Req. Reh’g generally. In like fashion, we also primarily address claim
12, as well as discuss claims 13 and 22.
Claim 12 recites, in the preamble, “[a] method for packing polysilicon
chunks, comprising” a number of steps. In the order recited, these steps are,
taking portions of polysilicon chunks, weighing such portions, optionally
classifying such portions, storing same in a multitude of buffer vessels,
defining a target weight to be packed, combining chunks from the buffer
vessels to attain this target weight, introducing these chunks into a bag, and
closing the bag. Claim 12 also recites that, based on the weight in the buffer
vessels, “less than 0.5% of fine material forms.” Notably, claim 12 provides
no structure or other indication as to how such limited fine material
formation is accomplished, only that it is accomplished. It is this
achievement of forming “less than 0.5% of fine material” that is the focus of
Appellant’s Request.
Appellant discusses past methods of packaging polysilicon, but states,
“[t]he present application is not directed to any of the above comminuting,
sieving, or classifying steps except as might be practiced as preliminary
steps, prior to the claimed method.”2 Req. Reh’g 4. However, claim 12

2 As if to emphasize, Appellant states, “[i]t is the packaging operation, an
operation which occurs after the classification operation and after the
removal of dust and fines, to which the present invention is directed.” Req.
Reh’g 4; see also id. at 6 (“It is the prevention of the formation of these
packaging-generated fines to which the claims are directed, not the removal
of previously inadvertently (Holzlwimmer) or purposefully (Flottmann)
generated fines.”).
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does not differentiate or distinguish these “old” steps from the presently
claimed steps. Instead claim 12 simply recites the above noted steps for “[a]
method for packaging polysilicon chunks.” Claims Appendix. This lack of
demarcation was addressed in the Decision which stated, “[t]he rejection,
however, is not directed to a combination that may require additional or
‘further sieving’ during packaging.” Decision 7 (referencing Appeal Br. 8).
Hence, it is not clear how this issue was misapprehended or overlooked by
the Board.
To further underscore the matter, Appellant states, “[w]hat is claimed
is a packaging method (lines 1–10 of claim 12) wherein less than 0.5 wt. %
of fine materials forms.” Req. Reh’g 8. It appears Appellant is construing
the formation of fines as a desired end result (claim 12 recites “wherein,
based on the total weight of the at least 4 portions contained in the buffer
vessels, less than 0.5% of fine material forms”). However, the Decision
addressed how the combination of cited art disclosed this limitation, noting
the Examiner’s (correct) statement, “the sieving process of Flottmann as part
of the packing process reduces the amount of fine material formation in the
final bag.” Decision 7–8 (referencing Ans. 10); see also Flottmann 2:24–26
(“The dust formed is advantageously separated from the flow of silicone
fragments, for example by means of an extraction unit.”), 2:44–46 (“The
silicone fragments are classified and separated and dust is removed by
means of these passage openings.”). Appellant also seems to agree with this
assessment stating that, when discussing Holzlwimmer and Flottmann, “all
the fines generated prior to the packaging operation are removed. Thus,
prior to packaging, the polysilicon chunks contain no fines.” Req. Reh’g 6.
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As such, it is not clear how the Board may have misapprehended or
overlooked this matter.
Appellant further contends, “[t]he problems addressed by Appellant
are those of reducing the proportion of fines contained in the bags.” Req.
Reh’g 5; see also id. at 6, 9 (“none of the references even acknowledge that
additional fines are formed during packaging”). However, the Supreme
Court stated, “[i]n determining whether the subject matter of a patent claim
is obvious, neither the particular motivation nor the avowed purpose of the
patentee controls. What matters is the objective reach of the claim.” KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Hence, we must look to
the claim language, not Appellant’s avowed purpose or problem addressed.
On this point, and as addressed in the Decision, Appellant is not persuasive
that the cited art fails to disclose the recited limitations. See Decision
generally. Consequently, even should the Board have failed to focus on
“[t]he problems addressed by Appellant” as asserted above, such failure is
not indicative the Board misapprehended or overlooked this matter.
Appellant also contends, in footnote 8, that “[t]hese high demands
distinguish this technology from other, more mundane packaging methods.”
Req. Reh’g 5. However, the only “high demands” recited in claim 12 is the
recitation that, based on the total weight in the various buffer vessels, “less
than 0.5% of fine material forms.” As expressed in the Decision, “the
Examiner relies on Flottmann for achieving the recited amount of fines.”
Decision 7 (referencing Final Act. 4). Thus, Appellant is not persuasive that
the above noted “high demands” were misapprehended or overlooked by the
Board.
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Appellant further emphasizes “during packaging” (Req. Reh’g 6),
“prior to the packaging operation” (Req. Reh’g 7), and “formed during
packaging” (Req. Reh’g 8, 10) as if to indicate a specific time during which
product is actually deposited into a bag. However, as stated above, claim 12
recites a “method for packing polysilicon chunks” that employs many so-
called ‘pre-deposit’ steps in addition to the steps of “introducing the
polysilicon chunks . . . into a plastic bag and closing the plastic bag.” Thus,
any attempt by Appellant to separate pre-packaging steps from actual
packaging steps is inconsistent with the language of claim 12, which refers
to all the steps as pertaining to “[a] method for packing.” Claims Appendix.
We thus are not apprised as to how the Board may have misapprehended or
overlooked this point.
Appellant also states, “[f]orming fines is not at all related to removing
fines by sieving (Flottmann).” Req. Reh’g 8. “Flottmann produces fines; he
does not prevent their formation.” Req. Reh’g 9. It is not disputed that
Flottmann produces fines, and that Flottmann also teaches their removal.3
See Flottmann 2:24–26, 2:42–46 above. The Examiner found that “the
sieving process of Flottmann as part of the packing process reduces the
amount of fine material formation in the final bag.” Ans. 10 (emphasis
added). The Decision quotes and discusses this finding. See Decision 7–8.
Consequently, it is not clear how the Board misapprehended or overlooked
this point.

3. “Combining Flottmann with Holzlwimmer teaches only what has long
been done in polysilicon packaging: removal of dust and fines prior to
packaging.” Req. Reh’g 8. Appellant states, “[t]hat is not what is claimed”
(Req. Reh’g 8), but we disagree, the reduction of fines in the final product is
exactly that which is claimed.
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When addressing Zeyer, Appellant acknowledges that “multi-
compartment weighers were known well prior to” Appellant’s filing date.
Req. Reh’g 10; see also id. at 11. This acknowledgement of prior multi-
compartment teachings is consistent with the Examiner’s reliance on Zeyer.
See Final Act. 3; Decision 5–6. Thus, there is no indication the Board
misapprehended or overlooked the teachings of Zeyer when rendering the
Decision.
Appellant additionally presents new arguments to the effect asking
“[w]hy, then, haven’t those skilled in the art used a device like Zeyer’s?” and
also “long sought need.” Req. Reh’g 12. Despite not previously being
raised, “[m]ere argument or conclusory statements . . . [do] not suffice.” In
re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Addressing, now, the Board’s interpretation of claim 13, this claim
recites, “the polysilicon chunks comprise a plurality of polysilicon chunks or
individual polysilicon chunks.” We could discern no difference between “a
plurality” of chunks and “individual” chunks. Decision 4. Appellant now
seeks to amend this language by, in the latter phrase, referring to a single
“chunk” rather than the plural “chunks” as originally recited. See Req.
Reh’g 13 (“a plurality of polysilicon chunks or a single polysilicon chunk”
and “[i]n other words, a 1 kg portion may comprise five 200 g chunks, or
[may] comprise a single 1 kg chunk”) (emphasis added). We stand by our
interpretation of the original claim language involving the plural term
“chunks.”
Regarding claim 22, Appellant notes the industry standard that “the
contents of the bags should be within ± 1% of the target weight.” Req.
Reh’g 4. Appellant states, “[p]rior to the present invention, it was necessary
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for manual intervention to occur in order to meet these weight tolerance
standards.” Req. Reh’g 4; see also id. at 5, 10. We note that claim 12 is
silent as to whether “manual intervention” is required or not. Thus,
Appellant’s focus on an unclaimed feature to distinguishing past methods is
not persuasive the Board misapprehended or overlooked Wochner’s teaching
of “the recited weight tolerance range.” Decision 10 (referencing Final Act.
6).
Appellant, in closing, also newly argues there was ambiguity in the
Examiner’s rejection. See Req. Reh’g 13–14. However, we are not
persuaded, after the lengthy discussion above, that the Examiner’s rejection
was so uninformative that Appellant was prevented from recognizing and
unable to counter the grounds of rejection. See In re Jung, 637 F.3d 1356,
1362 (Fed. Cir. 2011).
DECISION
Appellant’s Request for Rehearing has been granted to the extent that
the Board reconsidered its Decision in light of the statements made in this
Request, but is denied with respect to the Board making any modification to
the Decision.

DENIED

Outcome of Decision on Rehearing:
Claims 35 U.S.C.
§
Reference(s)/Basis Denied Granted
12–20 103(a) Holzlwimmer,
Zeyer, Flottmann
12–20
21, 22 103(a) Holzlwimmer, 21, 22
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Zeyer, Flottmann,
Wochner
Overall
Outcome
12–22

Final Outcome of Appeal after Rehearing:
Claims 35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
12–20 103(a) Holzlwimmer,
Zeyer, Flottmann
12–20

21, 22 103(a) Holzlwimmer,
Zeyer, Flottmann,
Wochner
21, 22
Overall
Outcome
12–22