Ex Parte Mulet et al

Patent Trial and Appeal BoardMay 8, 2018

13520454 (P.T.A.B. May. 8, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/520,454 07/03/2012 Jean-Philippe Mulet 22850 7590 05/10/2018 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 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. 400686US99PCT 8405 EXAMINER HON, SOW FUN ART UNIT PAPER NUMBER 1782 NOTIFICATION DATE DELIVERY MODE 05/10/2018 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): patentdocket@oblon.com oblonpat@oblon.com tfarrell@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEAN-PHILIPPE MULET, BERTRAND CHARPENTIER, PABLO VILATO, and MICHAEL BOURGEOIS 1 Appeal2017-008450 Application 13/520,454 Technology Center 1700 Before CATHERINE Q. TIMM, JENNIFER R. GUPTA, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest is identified as Eurokera S.N.C. of Chateau-Thierry, France. Appeal Brief, filed December 23, 2016 ("App. Br."), 1. Appeal2017-008450 Application 13/520,454 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134 from a rejection2 of claims 1-5, 7-15, 17-22, 25, and 26. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. CLAIMED SUBJECT MATTER The claims are directed to the composition of glass-ceramics and certain parameters of glass-ceramics such as the thermal expansion coefficient as well as the visual appearance. Spec. 1 :30-2:4, 2:5-6, 31-32. 3 Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A display assembly, comprising a glass-ceramic plate comprising a lithium aluminosilicate and a luminous device comprising a polychromatic light source, wherein: an optical transmission of the glass-ceramic plate for a thickness of 4 mm is between 0 .2 % and 4 % for at least one wavelength between 400 and 500 nm; the polychromatic light source has at least one first emission of nonzero intensity at said wavelength between 400 and 500 nm and at least one second emission at a wavelength of more than 5 00 nm; the polychromatic light source is positioned to allow display through said glass-ceramic plate, the glass-ceramic plate comprises tin oxide in an amount by weight of between 0.1%and0.5%, the glass-ceramic plate comprises vanadium oxide in a weight content ofbetween <0.01 % and 0.2%, the glass-ceramic plate comprises As203 in a weight content of from 0% to 0. 01 %, 2 Final Office Action mailed August 1, 2016 ("Final Act."). 3 Application 13/520,454, Display Assembly Comprising a Glass-Ceramic Plate. We refer to the "Specification," which we cite as "Spec." 2 Appeal2017-008450 Application 13/520,454 the glass-ceramic plate comprises at least one reducing agent, the glass-ceramic plate comprises between 0.2% and 2.5% by weight of CaO, and the at least one first emission and the at least one second emission through the glass-ceramic plate allow for display of different colors. App. Br. 15 (Claims Appendix) (emphases added). REFERENCES The prior art references relied upon by the Examiner in rejecting the claims on appeal are: Costin Nakane Siebers Spindler US 2003/0008759 Al EP 1 465 460 A2 US 2005/0143247 Al US 2008/0268282 Al Jan.9,2003 Oct. 6, 2004 Jun.30,2005 Oct. 30, 2008 Wikipedia ("Color"), available at http://en.wikipedia.org/wiki/Color (printed Jun. 6, 2014) REJECTIONS Claims 1-5, 7-15, 17-22, 25, and 26 are rejected under pre-AIA 35 U.S.C. Â§ 103(a) as being unpatentable over Nakane in view of Siebers, as evidenced by Wikipedia ("Color"). Final Act. 2; Adv. Act. 2. 4 Claim 16 is rejected underpre-AIA 35 U.S.C. Â§ 103(a) as being unpatentable over Nakane in view of Siebers and Spindler. Final Act. 16. Claims 23 and 24 are rejected under pre-AIA 35 U.S.C. Â§ 103(a) as being unpatentable over Nakane in view of Siebers and Costin. Final Act. 17. 4 Advisory Action mailed September 30, 2016 ("Adv. Act."). 3 Appeal2017-008450 Application 13/520,454 OPINION We adopt the Examiner's findings pertinent to the issues raised by Appellants and incorporate the fact findings as set forth in the Final Office Action, Advisory Action, and Examiner's Answer. We add the following for emphasis. Appellants first argue that N akane does not teach or suggest a glass-ceramic having "tin oxide in an amount by weight of between 0.1 % and 0.5%" as recited in claim 15 because Nakane describes a composition at paragraph 22 in which tin oxide is absent. App. Br. 7. When determining obviousness, "the prior art as a whole must be considered. The teachings are to be viewed as they would have been viewed by one of ordinary skill." In re Hedges, 783 F.2d 1038, 1041 (Fed. Cir. 1986). In this case, Appellants have not explained why a skilled artisan would exclude Example 2 in Nakane which describes a glass-ceramic having 0.5 weight percent of Sn02 from the prior art teaching as a whole. App. Br. 8; see Nakane i-f 25 (Table 1). The composition ofNakane's Example 2 having 0.5 weight percent of Sn02 touches the end point of the "amount by weight of between 0.1 % and 0.5%" as recited in claim 1. Appellants' argument that N akane is "silent" concerning tin oxide is not supported by the record and does not identify reversible error in the Examiner's finding in this regard. Moreover, a "range" in the prior art can be shown by reference to multiple prior art patents. See, e.g., Iron Grip Barbell Co. v. USA Sports, 5 Consistent with the provisions of 37 C.F.R. Â§ 41.37(c)(l)(iv) (2013), claims 2-5, 7-15, 17-22, 25, and 26 stand or fall with claim 1, as Appellants make no distinct arguments beyond the arguments regarding claim 1. See, e.g., App. Br. 7-13. 4 Appeal2017-008450 Application 13/520,454 Inc., 392 F.3d 1317 (Fed. Cir. 2004) (stating that "Iron Grip is claiming a weight plate with three elongated handles, within the range of the prior art" when separate prior art patents disclosed weight plates having one, two, or four holes or handles). In this case, the Examiner additionally finds that a glass ceramic composition containing "Sn02<0.5 wt. %"is taught in Siebers. Adv. Act. 21 (citing Siebers i-f 51 ). Appellants do not dispute this teaching in Siebers. Compare Adv. Act. 21 with App. Br. 7-9; 6 Ans. 21. 7 Appellants' argument that Nakane does not show Sn02 as a result effective variable (App. Br. 8) is therefore not supported by the combined prior art teachings and does not identify reversible error in the Examiner's findings with regard to Nakane and Siebers. Appellants next argue that N akane does not teach a glass-ceramic having "between 0.2% and 2.5% by weight ofCaO" as recited in claim 1 because Nakane describes a composition having "CaO 0 to 5%." App. Br. 9 (citing Nakane ,-r 22). Appellants argue that because CaO is optional in Nakane, a skilled artisan would not consider CaO a result effective variable. Id. Appellants also argue that Siebers likewise shows CaO is optional because it describes a composition having "0-1.5" percent CaO. Id. (citing Siebers i-f 38). "A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art." In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). The prior art references undisputedly describe that CaO may be included in the glass-ceramic. Nakane i-f 22; Siebers i-f 38; compare Final Act. 5-6, with App. Br. 9-10. The 6 Appellants did not file a reply brief in this case. 7 Examiner's Answer mailed March 1, 2017 ("Ans."). 5 Appeal2017-008450 Application 13/520,454 prior art ranges of CaO in both Nakane and Siebers undisputedly encompass the range of"between 0.2% and 2.5%" recited in claim 1. The burden is therefore on Appellants to show that the recited composition would not have been obvious. Appellants in this case failed to carry their burden because they fail to present factual evidence supporting a finding that the recited range of CaO produces any unexpected results (discussed in further detail infra). See in re Peterson, 315 F.3d at 1330. Appellants lastly argue that Nakane does not teach a glass-ceramic having "As20 3 in a weight content of from 0% to 0.01 %" as recited in claim 1 because "Nakane relies upon the presence of arsenic oxide to effect desired results." App. Br. 10. Appellants point to "examples 1-3 and 6-8 hav[ing] at least 0.5% As20 3" but do not explain why examples 4 and 5 showing 0% of As203 should be excluded from the prior art teaching as a whole. Id. (citing Nakane i-f 25 (Table 1)). As we noted earlier, when determining obviousness, "the prior art as a whole must be considered. The teachings are to be viewed as they would have been viewed by one of ordinary skill." In re Hedges, 783 F.2d at 1041. Appellants' argument is not based on the entire teaching ofNakane and does not identify reversible error in the Examiner's findings. The examples presented by Appellants do not support any unexpected results. The compositions in Table 1 of the Specification cited by Appellants (App. Br. 11-12) are not commensurate in scope with that of claim 1. For example, examples 3a, 3b, 3c, and 3d of Table 1 include 0.3 % by weight, 0.3 % by weight, 0.3 % by weight, and 0.25 % by weight of Sn02, respectively. Spec. at 19 (Table 1 ). Appellants do not explain why these examples provide a reasonable basis for the recited range of "tin oxide 6 Appeal2017-008450 Application 13/520,454 in an amount by weight of between 0.1 % and 0.5%." See App. Br. 11-12. Appellants also do not show that the results are "unexpected compared with the closest prior art." In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991 ). Thus, Appellants have not presented sufficient evidence in support of any unexpected results. DECISION The Examiner's rejection of claims 1-5, 7-15, 17-22, 25, and 26 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7