Ex Parte Hebrink et al

Patent Trials and Appeals Board

Jun 17, 2019

13142025 - (D) (P.T.A.B. Jun. 17, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/142,025 06/24/2011
32692 7590 06/19/2019
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
FIRST NAMED INVENTOR
Timothy J. Hebrink
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.
64819US012 9007
EXAMINER
LEI, JIE
ART UNIT PAPER NUMBER
2872
NOTIFICATION DATE DELIVERY MODE
06/19/2019 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):
LegalUSDocketing@mmm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY J. HEBRINK, SEBASTIAN F. ZEHENTMAIER, and
LUDWIG MA YER
Appeal2018-007500
Application 13/142,025
Technology Center 2800
Before ROMULO H. DELMENDO, MARK NAGUMO, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicants 1 ("Appellants") appeal under 35 U.S.C. § 134(a) from
the Primary Examiner's final decision to reject claims 1, 5-10, 12, 14--18,
22, 23, 27, and 28. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The Applicants identify "3M Company ... and its affiliate 3M Innovative
Properties Company" as the real parties in interest (Appeal Brief filed May
22, 2017 ("Appeal Br."), 2).
2 Appeal Br. 4--13; Reply Brief filed July 16, 2018 ("Reply Br."), 2-5 (not
paginated); Final Office Action entered October 17, 2016 ("Final Act."), 2-
17; Examiner's Answer entered May 17, 2018 ("Ans."), 2-11.
Appeal2018-007500
Application 13/142,025
I. BACKGROUND
The subject matter on appeal relates to a multilayer optical film and to
a method for making such a film (Specification filed June 24, 2011
("Spec."), 1, 11. 5---6). The Appellants explain that "[b ]y selecting the
appropriate layer pairs, the layer thickness, and/or the number of layer pairs
[in the optical film], the optical stack [i.e., the optical film] can be designed
to transmit or reflect the desired wavelengths" (id. at 9, 11. 5-7). The optical
film is described as being useful in architectural applications, greenhouse
applications, solar power applications, lighting, fenestration products, and
other applications (id. at 20, 11. 30-32).
Representative claim 1, which is the sole independent claim, is
reproduced from the Claims Appendix to the Appeal Brief, as follows:
1. A multilayer optical film comprising an optical
stack, wherein the optical stack comprises:
a) a plurality of first optical layers, each first optical
layer comprising a single melt-processible polymer,
wherein the melt-processible polymer comprises
interpolymerized units derived from tetrajluoroethylene,
hexajluoropropylene, and vinylidene fluoride; and
b) a plurality of second optical layers disposed in a
repeating sequence with the plurality of first optical layers,
each second optical layer comprising a non-fluorinated
polymeric material selected from the group consisting of:
poly(methyl methacrylate ); copolymers of poly(methyl
methacrylate ); polypropylene; copolymers of propylene;
polystyrenes; copolymers of styrene; polyvinylidene
chloride; polycarbonates; thermoplastic polyurethanes;
copolymers of ethylene; cyclic olefin copolymers; and
combinations thereof wherein the optical stack comprises
layer pairs comprising the first optical layer and the second
optical layer.
(Appeal Br. 14 (emphasis added).)
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II. REJECTIONS ON APPEAL
The claims on appeal stand rejected under pre-AIA 35 U.S.C. § 103(a)
as follows:
A. Claims 1, 5-10, 12, 15-18, 23, 27, and 28 as unpatentable over
Wheatley et al. 3 ("Wheatley") in view of Fukushi et al. 4
("Fukushi"); and
B. Claims 14 and 22 as unpatentable over Wheatley and Fukushi,
further in view of Condo et al. 5 ("Condo").
(Ans. 2-11; Final Act. 2-17.)
III. DISCUSSION
Rejection A. The Appellants' arguments focus primarily on claim 1
but also address several additional claims (Appeal Br. 4--12). Therefore, we
address claim 1 and any other claims that have been argued separately
within the meaning of 37 C.F.R. § 4I.37(c)(l)(iv).
1. Claim 1
The Examiner finds that Wheatley describes a multilayer optical film
including every limitation recited in claim 1 except the reference does not
specifically disclose that each first optical layer includes a melt-processible
polymer comprising interpolymerized units derived from
tetrafluoroethylene, hexafluoropropylene, and vinylidene fluoride (Final Act.
3--4). The Examiner finds, however, that Fukushi teaches a multi-layer
article including (i) a first optical layer comprising a fluoropolymer with
3 US 5,278,694, issued January 11, 1994.
4 US 6,074,719, issued June 13, 2000.
5 US 6,498,683 B2, issued December 24, 2002.
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Application 13/142,025
interpolymerized units derived from tetrafluoroethylene,
hexafluoropropylene, and vinylidene fluoride and (ii) a second layer
comprising a non-fluorinated polymer, wherein the article exhibits certain
advantageous properties (flexibility and resistance to chemical agents,
solvents, and soil) (id. at 4). Based on these findings, the Examiner
concludes:
[I]t would have been obvious to a person having ordinary skill in
the art ... to modify the multilayer optical film of Wheatley by
the multilayer of Fukushi for the purpose of providing of a multi-
layer compositions and articles of retroreflective which is [sic]
flexible, resistant to chemical agents, solvents, soils, reduced
moisture vapor transmission, and particularly useful for making
articles, such as tubing and hoses suitable for use in motor
vehicles, for example as fuel-line hoses, and flexible
retroreflective sheetings.
(Id., emphasis added).
The Examiner also concludes that the claimed subject matter would
have been obvious because "it has been held to be within the general skill of
a worker in the art to select a known material on the basis of its suitability
for the intended use as a matter of design choice, involv[ing] only routine
skill in the art" (Ans. 7 (internal citation omitted)). See also Advisory
Action entered January 4, 2017, 2.
The Appellants contend that Wheatley ( disclosing reflective films)
and Fukushi ( disclosing retroreflective films) cannot be combined as
proposed in the rejection because these references are not in the same field
of endeavor (Appeal Br. 5-6). The Appellants argue that Fukushi teaches a
different type of construction because the 2-layer polymer construction
would contain retrorefractive elements in the form of physical elements such
as cube comers, microspheres, or prisms, which alter light rather than
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substantially reflect light, and that "the individual polymeric layers of
Fukushi are in the hundreds of micrometers in thickness not the micrometer
or submicrometer thicknesses disclosed in Wheatley, Condo, or the present
application" (id. at 6-7). Furthermore, the Appellants argue that the
rejection fails to articulate a sufficient motivation or reason to substitute
Wheatley' s perfluorinated polymers with a tetrafluoroethylene-
hexafluoropropylene-vinylidene fluoride terpolymer as disclosed in Fukushi
(id. at 7-8).
Regarding the Examiner's obviousness based on selection rationale,
the Appellants argue that Wheatley discloses a myriad of suitable
thermoplastic resins (i.e., 820 combinations) and that the Examiner "failed to
show why a person having ordinary skill in the art would tum away from the
about 820 combinations of Wheatley and tum to a reference which is not in
the same field" (id. at 8-9).
For the reasons discussed below, we conclude that the Appellants'
arguments fail to identify any reversible error in the Examiner's conclusion
that it would have been obvious to select and use an interpolymer derived
from units comprising tetrafluoroethylene, hexafluoropropylene, and
vinylidene fluoride in Wheatley as a matter of obvious selection based on its
expected suitability. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Wheatley describes a multilayered reflective polymer body
comprising a sufficient number of alternating layers of first and second
polymeric materials such that at least 30% of the light incident on the body
is reflected (Wheatley, Abstract; Fig. 1; col. 2, 1. 66-col. 3, 1. 9). As the
Examiner finds (Final Act. 3), Wheatley discloses an embodiment in which a
copolycarbonate (ofthiodiphenol and bisphenol-A}-i.e., a polycarbonate-
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is identified as a preferred second polymeric material (Wheatley, col. 4, 11.
49-51 ). Wheatley teaches that in this embodiment, the first polymeric
material comprises a copolymer (i.e., an interpolymer) of methyl
methacrylate, vinylidene fluoride, and a fluorocarbon monomer selected
from a list of identified fluorocarbon monomers (id., col. 4, 11. 3 8--49). Both
polymeric materials in Wheatley are disclosed as "thermoplastic" materials
that may be processed in a heat plastifying extruder-i.e., these materials are
melt-processible (id., col. 12, 11. 64---66).
Fukushi discloses a multilayer article comprising a fluoropolymer
layer comprising interpolymerized units derived from vinylidene fluoride
and a melt-processible, substantially non-fluorinated polymer comprising a
polyamide, polyimide, polyurethane, or a carboxyl-, anhydride-, or imide-
functionalized polyolefin (Fukushi, Abstract). Fukushi teaches that the
fluoropolymer may be a homopolymer, copolymer, or terpolymer derived
from monomers selected from the group consisting of vinylidene fluoride,
tetrafluoroethylene, and hexafluoropropene (id., col. 19, 11. 24--29). Fukushi
teaches:
Transparent embodiments of multi-layer compositions of
the present invention may find particular utility in the
construction of retroreflective sheeting articles generally, and
particularly when resistance to chemical agents, solvents, soils,
reduced moisture vapor transmission or good interlayer
adhesion in flexible sheetings subject to severe bending and
flexing is required.
(Id., col. 6, 11. 25-31 (emphases added).)
Considering the prior art teachings as a whole, we concur with the
Examiner that the claimed subject matter would have been obvious to a
person having ordinary skill in the art based on the prior art's suggestion to
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select and use a fluoropolymer material that includes the same monomers
recited in claim 1 (i.e., vinylidene fluoride, tetrafluorethylene, and
hexafluoropropylene ). As we found above, Wheatley teaches an
embodiment in which: (i) the first polymeric material comprises an
interpolymer of methyl methacrylate, vinylidene fluoride, and a
fluorocarbon monomer selected from a list of identified monomers; and
(ii) the second polymeric material is a copolycarbonate (id., col. 4, 11. 38-
51 ). Regarding the fluorocarbon monomers that may be interpolymerized
with methyl methacrylate and vinylidene fluoride, Wheatley identifies a
finite number of various fluorocarbon monomers including, inter alia,
hexafluoropropylene and tetrafluoroethylene (id.). Although Wheatley does
not disclose reacting a mixture of fluorocarbon monomers with methyl
methacrylate and vinylidene fluoride, a person having ordinary in the art
would have found it obvious to select an interpolymer of methyl
methacrylate, 6 vinylidene fluoride, and a mixture of both
hexafluoropropylene and tetrafluoroethylene as the first polymeric material
based on the reasonable expectation that a mixture of fluorocarbon
monomers, each identified as suitable, would also provide a suitable
interpolymer. In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980) (citation
omitted) ("It is prima facie obvious to combine two compositions each of
which is taught by the prior art to be useful for the same purpose, in order to
6 The additional presence of methyl methacrylate in Wheatley is immaterial
because claim 1 does not exclude unrecited monomers in the interpolymer.
In re Baxter, 656 F.2d 679, 686 (CCPA 1981) ("As long as one of the
monomers in the reaction is propylene, any other monomer may be present,
because the term 'comprises' permits the inclusion of other steps, elements,
or materials.").
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form a third composition which is to be used for the very same purpose.").
See also Hotchkiss v. Greenwood, 52 U.S. 248,265 (1850) ("[T]he knob of
clay was simply the substitution of one [known] material for another
[ wood].").
In this regard, Fukushi demonstrates that a similar interpolymer
derived from vinylidene fluoride, tetrafluoroethylene, and
hexafluoropropylene has been successfully used in multilayers having
optical properties (Fukushi, col. 6, 11. 25-31; col. 19, 11. 24--29 (claim 10)).
Thus, a person having ordinary skill in the art would have had a reasonable
expectation of success in selecting and using an interpolymer derived from
methyl methacrylate, vinylidene fluoride, tetrafluoroethylene, and
hexafluoropropylene in Wheatley's optical multilayer.
The Appellants' argument that Wheatley teaches a myriad of
polymers lacks persuasive merit because as we found above, Wheatley
discloses a specific embodiment in which the combination of the same
fluorocarbon monomers specified in claim 1 may be selected from a list of
finite options (Wheatley, col. 4, 11. 38--45). Wm. Wrigley Jr. Co. v. Cadbury
Adams USA LLC, 683 F.3d 1356, 1364--65 (Fed. Cir. 2012) (explaining that
a "strong case of obviousness" exists where the combination of ingredients
recited in the claims were based on selections from a finite number of
identified, predictable solutions). See also Merck & Co., Inc. v. Biocraft
Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) ("That the [reference]
discloses a multitude of effective combinations does not render any
particular formulation less obvious."); In re Corkill, 771 F.2d 1496, 1500
(Fed. Cir. 1985) (upholding obviousness rejection of claims based on prior
art teaching that "hydrated zeolites will work" in detergent formulations,
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Application 13/142,025
even though "the inventors selected the zeolites of the claims from among
'thousands' of compounds").
Because we sustain the rejection of claim 1 on the ground that the
claimed subject matter is unpatentable as a matter of obvious selection of a
known or suggested material based on its suitability for the purpose
disclosed in Wheatley, we need not reach the Examiner's alternative
rationale based on the advantages disclosed in Fukushi (Fukushi, col. 6, 11.
25-31).
2. Claim 28
Claim 28, which depends from claim 1, recites that "the non-
fluorinated polymeric material is selected from the group consisting of:
poly(methyl methacrylate ), copolymers of poly(methyl methacrylate ), and
combinations thereof' (Appeal Br. 17). The Appellants acknowledge that
the Examiner relies on Wheatley for these materials but argues that these
materials are not disclosed in Fukushi (id. at 9).
Because Wheatley teaches polymethyl methacrylate as an alternative
second polymeric material (Wheatley, col. 6, 11. 22-23, 56-57), the
Appellants' arguments focusing solely on Fukushi are inapt. In re Keller,
642 F.2d 413,425 (CCPA 1981).
Accordingly, we uphold the rejection of claim 28.
3. Claims 5 and 6
Claims 5 and 6, which depend from claim 1, recite that the optical
stack transmits and receives, respectively, at least portions of light having
certain specified wavelengths (Appeal Br. 14--15). The Appellants
acknowledge that "[t]he [Examiner] relies solely on the teaching of
Wheatley" for these claims but argues that "if the [Examiner] is replacing
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the polymeric material of Wheatley with that of Fukushi, the [Examiner] has
not shown nor provided evidence that such a combination of materials would
reflect or transmit the wavelengths recited" (id. at 10).
The Appellants' argument is not persuasive. As the Examiner finds
(Final Act. 5-6), Wheatley's films may be useful as optical interference
films for reflecting wavelength in the infrared region while transmitting light
in the visible spectrum (Wheatley, col. 7, 11. 48-52). This teaching in
Wheatley is sufficient to meet the limitations in claims 5 and 6, as broadly
recited. Furthermore, consistent with the Examiner's position (Ans. 9), the
claimed film's functional limitations or characteristics would necessarily
follow from the prior art-suggested modification of Wheatley' s film in view
of the structural similarities between the claimed film and Wheatley' s film.
In re Dillon, 919 F.2d 688, 692 (Fed. Cir. 1990) (en bane) ("[S]tructural
similarity between claimed and prior art subject matter, proved by
combining references or otherwise, where the prior art gives reason or
motivation to make the claimed compositions, creates a prima facie case of
obviousness, and ... the burden (and opportunity) then falls on an applicant
to rebut that prima facie case.").
For these reasons, we sustain the rejection of claims 5 and 6.
4. Claim 16
Claim 16 recites: "A coating comprising small pieces of the
multilayer optical film according to claim 1, wherein the largest dimension
of each piece is at least twice the thickness of the multilayer optical film and
not more than the maximum thickness of the coating" (Appeal Br. 16). The
Specification informs one skilled in the relevant art that the subject matter
recited in claim 16 includes a coating (in the form of a matrix) that
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incorporates small pieces of the multilayer optical film as glitter (Spec. 21,
11. 21-28).
The Examiner's position regarding claim 16, which has been
consistent throughout the prosecution, is stated as follows:
[I]t is common knowledge in the art that the multilayer optical
film can be converted into small pieces of the multilayer optical
film in any variety of desired shapes and sizes, including the
largest dimension of each piece is at least twice the thickness of
the multilayer optical film and not more than the maximum
thickness of the coating ...
(Final Act. 8; Non-Final Action entered January 25, 2013.)
In the Appeal Brief, the Appellants argue, for what appears to be the
first time in the prosecution:
If the Examiner is relying upon personal knowledge of cutting a
multilayer optical film into small pieces and using it in a coating,
the Examiner is respectfully requested to supply an affidavit for
this record as per 37 CPR § 1.104(d)(2), cite evidence to this
effect, or withdraw the unsupported assertion.
(Appeal Br. 10; compare, e.g., Reply filed December 19, 2016, 8 (relying on
claim 1 for the patentability of claim 16) and Reply filed August 1, 2016, 10
(same)).
The Appellants' request does not amount to a substantive argument
that the subject matter recited in claim 16 is independently or separately
patentable from claim 1. See MPEP § 2144.03(C) (Rev. 08.2017, Jan. 2018)
("To adequately traverse such a [noticed] finding, an applicant must
specifically point out the supposed errors in the examiner's action, which
would include stating why the noticed fact is not considered to be common
knowledge or well-known in the art.) (Emphasis added). Indeed, the
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Appellants do not assert that the noticed information is their contribution to
the art or their discovery.
Moreover, the Appellants' request for an Examiner's affidavit or
evidence on appeal after closing of prosecution was untimely because the
Examiner cannot add additional evidence into the record without reopening
prosecution. Because the Appellants' request was untimely, we are
constrained to take the officially noticed information as undisputed fact. Cf
In re Ahlert, 424 F.2d 1088, 1091 (CCPA 1970) ("Where the appellant has
failed to challenge a fact judicially noticed and it is clear that he has been
amply apprised of such finding so as to have the opportunity to make such
challenge, the board's finding will be considered conclusive by this court.").
As a mere request to supply evidence in and of itself is insufficient to
identify any reversible error in the Examiner's position, which has been
consistent throughout the prosecution since January 25, 2013, we sustain the
rejection of claim 16.
5. Claim 23
Claim 23 recites: "The multilayer optical film according to claim 1,
wherein the layer pair has an optical thickness that is about half of a
wavelength of interest, wherein the wavelength of interest is from 250 to
400 nm or from 350 to 800 nm" (Appeal Br. 17).
The Appellants argue that Wheatley has not been shown to disclose or
suggest the specified layer pair thickness and that, instead, the "layer pairs of
Wheatley appear to require a minimum of optical thickness of at least
450 nm" (Appeal Br. 10-11 (citing, e.g., Wheatley, col. 3, 11. 10-14)).
This argument is not persuasive. As the Examiner points out (Final
Act. 11-12), Wheatley teaches: "For example, first order visible reflections
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of violet (0.38 micrometer [380 nm] wavelength) to red (0.68 micrometer
[680 nm] wavelength) can be obtained with layer optical thicknesses
between about 0.075---0.25 micrometers [75-250 nm]" (Wheatley, col. 9, 11.
17-20). In addition, as the Examiner finds (Ans. 10), Wheatley teaches that
"it is not necessary for all of the layers in the reflective polymeric bodies ...
to have optical thicknesses of0.45 micrometers [450 nm] or greater or 0.09
micrometers [90 nm] or less" ( emphasis added) and that "useful reflective
bodies and articles may be made even with such wide variations as long as a
substantial majority of the layers have an optical thickness of not more than
0.09 micrometers [90 nm] or not less than 0.45 micrometers [ 450 nm]" (id.,
col. 10, 11. 6-9, 16-20). Therefore, Wheatley's thickness ranges overlap the
ranges recited in claim 23, and thus a prima facie case of obviousness exists.
In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ("Aprimafacie case of
obviousness typically exists when the ranges of a claimed composition
overlap the ranges disclosed in the prior art.").
Because the prima facie case has not been successfully rebutted, we
uphold the rejection of claim 23.
Rejection B. Claim 14, which depends from claim 12, 7 recites that
"the multilayer optical film is disposed between at least two panes of glass"
(id. at 15). Claim 22 recites: "The multilayer optical film according to
claim 1, wherein the first optical layer and the second optical layer have the
same thickness" (id. at 1 7).
7 Claim 12 recites: "An article comprising the multilayer optical film
according to claim 1" (Appeal Br. 15).
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Regarding claim 14, the Examiner finds that Condo teaches multilayer
optical bodies disposed between two panes of glass (Final Act. 13 ( citing
Condo, Figs. 1, 2, 12, 14; col. 7, 11. 11-13)). The Examiner concludes:
Therefore, it would have been obvious to a person having
ordinary skill in the art at the time the invention was made to
modify the multilayer optical film of Wheatley-Fukushi
combination by the multilayer optical bodies of Condo for the
purpose of providing a multilayer light-reflecting optical bodies
that reflect light over a range of wavelengths and are suited to
applications such as UV reflective films used, for example, to
protect other films and objects from UV radiation ....
(Id. at 13-14).
Regarding claim 22, the Examiner finds that Condo teaches a
multilayer optical body in which the first optical layer and the second optical
layer have the same thickness (Final Act. 14 ). The Examiner concludes that,
therefore, the claimed subject matter would have been obvious over the
collective teachings in the prior art (id.).
Regarding claim 14, the Appellants argue that it is unclear "why one
of ordinary skill in the art in possession of Wheatley, which appears to
encompass ultra violet radiation, would tum to Condo" (Appeal Br. 12).
Regarding claim 22, the Appellants argue that Wheatley and Fukushi teach
away from Condo because "Condo teaches two optical layers that are each a
quarter of a wavelength thick or having different optical thickness, as long as
the sum of the optical thicknesses is half of a wavelength ( or a multiple
thereof)," whereas Wheatley states that "'a thin film can be described as a
film thinner than one wavelength of light at which the film will be applied'"
(id. (internal citations omitted)).
We disagree with the Appellants. Condo teaches that the "optical
body can be used as an IR film, to, for example, reflect solar energy from,
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for example, windows of building and automobiles" (Condo, col, 7, 11. 11-
13; Figs. 1, 2). Wheatley teaches that "light" in the context of its disclosure
encompasses not only visible light but also electromagnetic radiation in both
the infrared and ultraviolet regions of the light spectrum (Wheatley, col. 3,
11. 3---6). Therefore, as far as claim 14 is concerned, we do not view
Wheatley' s disclosure as teaching away from Condo.
As for claim 22, we agree with the Examiner that Condo and
Wheatley are not in tension. Wheatley teaches that "a thin film can be
described as a film thinner than one wavelength of light at which the film
will be applied" (Wheatley, col. 8, 11. 51-55), whereas Condo teaches that
"[t]he optical layers 12, 14 can each be a quarter wavelength thick or the
optical layers 12, 14 can have different optical thicknesses, as long as the
sum of the optical thicknesses is half of a wavelength ( or a multiple
thereof)" (Condo, col. 6, 11. 32-36). Again, we do not find that these
disclosures to be in tension with each other or otherwise teach away from
each other.
For these reasons, we sustain Rejection B.
IV. SUMMARY
Rejections A and Bare sustained. Therefore, the Examiner's final
decision to reject claims 1, 5-10, 12, 14--18, 22, 23, 27, and 28 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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