Ex Parte Ahrens et al

Patent Trial and Appeal Board

Mar 7, 2016

12511306 (P.T.A.B. Mar. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/511,306 0712912009
22928 7590 03/09/2016
CORNING INCORPORATED
SP-TI-3-1
CORNING, NY 14831
FIRST NAMED INVENTOR
Jeffrey H. Ahrens
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
SP09-214 3538
EXAMINER
KRINKER, Y ANA B
ART UNIT PAPER NUMBER
1747
NOTIFICATION DATE DELIVERY MODE
03/09/2016 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):
usdocket@corning.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY H. AHRENS, CHARLES M. CARTER,
and JONGHAK KIM1
Appeal2014-006864
Application 12/511,306
Technology Center 1700
Before TERRY J. OWENS, GEORGE C. BEST, and
JEFFREY W. ABRAHAM, Administrative Patent Judges.
ABRAHAM, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 1-19. We have jurisdiction pursuant to
35 U.S.C. § 6(b). We reverse.
BACKGROUND
Appellants' claimed invention relates to methods for making a glass
material. Abstract.
1 According to the Appeal Brief, the Real Party in Interest is Coming
Incorporated. App. Br. 2.
Appeal2014-006864
Application 12/511,306
Claims 1 and 16 are the only independent claims on appeal, and are
reproduced below:
1. A method of making a glass material comprising the step
of:
controlling an actual batch fill rate of batch material
entering a glass melter comprising the steps of estimating
a batch fill rate of batch material entering the glass melter
at a location upstream from the glass melter, and
controlling the actual batch fill rate based on a
comparison between a predetermined batch fill rate of
batch material entering the glass melter and the estimated
batch fill rate at the location upstream from the glass
melter.
16. A method of controlling a level of molten glass within a
glass melter comprising the steps of:
monitoring a level of molten glass within the glass
melter;
calculating a predetermined batch fill rate for the glass
melter based on a difference between a predetermined
level of molten glass and the monitored level of molten
glass;
estimating a batch fill rate of batch material entering the
glass melter by determining a characteristic change in a
quantity of batch material over time at a location
upstream from the glass melter; and
controlling an actual batch fill rate of batch material
entering the glass melter based on a comparison between
the predetermined batch fill rate of batch material
entering the glass melter and the estimated batch fill rate
at the location upstream from the glass melter.
2
Appeal2014-006864
Application 12/511,306
REJECTIONS
The Examiner maintains, and Appellants appeal, the following
rejections:
1. Claims 1, 3-8, 10-13, 16, 17, and 19 as unpatentable under 35
U.S.C. § 103(a) over Hynd2 in view ofKhanbaghi3 and
Marmsater. 4
2. Claims 2 and 15 as unpatentable under 35 U.S.C. § 103(a) over
Hynd, Khanbaghi, and Marmsater, and further in view of
Houstoll" 5
'
3. Claims 9, 14, and 18 as unpatentable under 35 U.S.C. § 103(a)
over Hynd, Khanbaghi, and Marmsater, and further in view of
ProVu· 6
'
4. Claim 11 as unpatentable under 35 U.S.C. § 103(a) over Hynd,
Khanbaghi, Marmsater, and Pro Vu, and further in view of PR448; 7
OPINION
Independent claims 1 and 16 require, inter alia, controlling an actual
batch fill rate of batch material "based on a comparison between a
predetermined batch fill rate of batch material entering the glass melter and
the estimated batch fill rate at the location upstream from the glass melter."
The Examiner finds that Hynd teaches calculating a predetermined
batch fill rate and that Marmsater teaches estimating the batch fill rate of
batch material entering a container at a location upstream from the container.
Final Act. 2 (citing Hynd 1:45--47), 3 (citing Marmsater 2:8-22). The
2 Hynd, US 4,011,070, issued Mar. 8, 1977.
3 Khanbaghi, US 7,840,500 B2, issued Nov. 23, 2010.
4 Marmsater, US 6,168,305 Bl, issued Jan. 2, 2001.
5 Houston, US 4,090,241, issued May 16, 1978.
6 Precision Digital, "PD62 l 0 & PD63 l 0 Pro Vu Batch Controllers,"
httQ:i /www .J2redig.com/PD62 l O/index.J2hQ (2011 ).
7 Practicon Products, "PR448 Feed Rate Controller."
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Appeal2014-006864
Application 12/511,306
Examiner further finds that "Hynd teaches controlling an actual batch fill
rate of batch material entering the glass melter," and "[s]ince 'based on' is
so broad and can be interpreted in many ways, the Examiner interprets that
taking into consideration both the predetermined bath [sic] fill rate, as taught
by Hynd, and the estimated batch fill rate, as taught by Marmsater, meets the
limitation." Id. at 4.
Appellants argue the Examiner has failed to establish a prima facie
case of obviousness because the Examiner has not demonstrated that the
prior art discloses or suggests all of the limitations of the claimed invention.
App. Br. 4. Specifically, with regard to "controlling the actual batch fill rate
based on a comparison between a predetermined batch fill rate ... and the
estimated batch fill rate," Appellants contend that the Examiner has
"isolate[ d] a general concept from a few references, ignore[ d] the actual
teachings of those references as a whole, and conclude[d], without any
reasoning as to why it would have been obvious for one of ordinary skill in
the art to do so, that the references teach the method claimed." Id. at 9-10.
After review of the respective positions provided by Appellants and
the Examiner, we find that the Examiner has failed to establish a prima facie
case of obviousness.
The Examiner bears the initial burden of factually supporting any
prima facie conclusion of obviousness. See In re Warner, 379 F.2d 1011,
1016 (CCPA 1967). To support an obviousness rejection, all claim
limitations must be taught or suggested by the prior art applied. See In re
Royka, 490 F.2d 981, 984-85 (CCPA 1974).
Although the Examiner finds that Hynd teaches controlling a batch fill
rate for raw materials and that Marmsater teaches estimating a batch fill rate,
the claims require more than simply controlling and estimating a batch fill
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Appeal2014-006864
Application 12/511,306
rate. As noted above, and emphasized by Appellants, the claims require
controlling the batch fill rate based on a comparison of an estimated and a
predetermined fill rate. The Examiner relies on Hynd for its disclosure of
the "controlling" limitation, but Hynd explicitly teaches controlling a batch
fill rate "based on an accurate measurement of the surface level of the
molten glass at some predetermined position," not based on a comparison of
estimated and predetermined batch fill rates. Hynd 1 :43-50. The Examiner
does not direct us to any portion of Marmsater that teaches controlling a
batch fill rate based on a comparison between estimated and predetermined
batch fill rates. 8
In view of this, the Examiner determined, without adequate
explanation, that it would have been obvious to a person of ordinary skill in
the art to "take[] into consideration both the predetermined bath fill rate, as
taught by Hynd, and the estimated batch fill rate, as taught by Marmsater."
Final Act. 4. "Rejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006) (quoted with
approval inKSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)).
Accordingly, we find the Examiner failed to establish a prima facie
case of obviousness. We, therefore, reverse the Examiner's rejection of
claims 1-19.
8 The Examiner does not rely on Khanbaghi as teaching this limitation. See
Final Act. 3-4.
5
Appeal2014-006864
Application 12/511,306
CONCLUSION
The Examiner's rejections of claims 1-19 are reversed.
REVERSED
6