William Keith. Fisher et al.

Patent Trials and Appeals Board

Sep 25, 2019

13247215 - (D) (P.T.A.B. Sep. 25, 2019)

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.
13/247,215 09/28/2011 William Keith Fisher SP10-275 1723
22928 7590 09/25/2019
CORNING INCORPORATED
SP-TI-3-1
CORNING, NY 14831
EXAMINER
KHAN, TAHSEEN
ART UNIT PAPER NUMBER
1781
NOTIFICATION DATE DELIVERY MODE
09/25/2019 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):
usdocket@corning.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE
THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte WILLIAM KEITH FISHER,1
Michael John Moore, Steven S. Rosenblum,
Zhiqiang Shi, and John Christopher Thomas
________________

Appeal 2018-009144
Application 13/247,215
Technology Center 1700
________________

Before MARK NAGUMO, MICHAEL P. COLAIANNI, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
William Keith Fisher, Michael John Moore, Steven S. Rosenblum,
Zhiqiang Shi, and John Christopher Thomas (“Fisher”) timely appeal
under 35 U.S.C. § 134(a) from the Final Rejection2 of all pending claims 1–
6, 8–15, 18–21, and 23–25. We have jurisdiction. 35 U.S.C. § 6.
We AFFIRM, but, in order to provide Fisher with a full and fair opportunity

1 The real party in interest is identified as Corning Incorporated. (Appeal
Brief, filed 13 April 2018 (“Br.”), 2.)
2 Office Action mailed 13 November 2017 (“Final Rejection”; cited as
“FR”).
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to respond to certain issues raised belatedly, we denominate the affirmance a
new ground of rejection.
OPINION
A. Introduction3
The subject matter on appeal relates to “chemically-strengthened glass
laminates having low weight, high impact resistance, and sound-damping
properties.” (Spec. 1 [0002].) Such products are said to be of special
interest in architectural and transportation applications because they increase
efficiency, safety, and comfort. (Id. at [0003].)
The ′215 Specification teaches that glass sheets are chemically
strengthened, typically by immersing the sheet into a molten salt bath
containing larger ions (e.g., potassium) than are in the glass (e.g., sodium).
The larger potassium ions displace smaller sodium ions (to a certain extent
and to a certain depth of exchange), creating compressive stress (CS) on the
surface and central tension (CT) in the interior. (Id. at 5 [0027].) The
Specification reveals preferred values of a compressive stress on the surface
of at least 300 MPa (more preferably at least 600 MPa), a layer depth of ion

3 Application 13/247,215, Chemically-strengthened glass laminates,
filed 28 September 2011, claiming the benefit of a provisional application
filed 15 October 2010. We refer to the “′215 Specification,” which we cite
as “Spec.”
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exchange of at least 20 μm (preferably at least 50 μm)4, and a central tension
greater than 40 MPa and less than 100 MPa. (Id. at [0029].)
The Specification teaches that “[i]n order for flaws to propagate and
failure to occur, the tensile stress from an impact must exceed the surface
compressive stress at the tip of the flaw.” (Id. at 12 [0061].) Thus, the
Specification continues, the “high compressive stress and high depth of layer
of chemically-strengthened glass sheets enable the use of thinner glass than
in the case of nonchemically-strengthened glass.” (Id.) Moreover, the
chemically strengthened glass laminates can deflect much further without
breaking in response to a mechanical impact than ordinary glass laminates,
which “enables more energy transfer to the laminate interlayer, which can
reduce the energy that reaches the opposite side of the glass.”
(Id. at [0064].) This effect is said to increase the impact energy that can be
withstood.
It is also thought that converting energy from the glazing flexural
modes into shear strains within the polymer interlayer affects the
transmission of sound through the laminate. (Id. at 14 [0067].) In the words
of the Specification, “[i]n glass laminates employing thinner glass sheets, the
greater compliance of the thinner glass permits a greater vibrational
amplitude, which in turn can impart greater shear strain on the interlayer.”
(Id.) As a result, the Specification continues, “[t]he low shear resistance of
most viscoelastic polymer interlayer materials means that the interlayer will

4 The layer depth is also expressed, in microns, as 65 − 0.6(CS)
(Spec. 6 [0032]); more generally as B − M(CS), with specified ranges for
parameters B, M, and CS (id. at [0033]) .
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promote damping via the high shear strain that will be converted into heat
under the influence of molecular chain sliding and relaxation.” (Id.)
The influence of these variables on the propagation of sound through
a glass laminate can be characterized by a figure of merit known as the
“coincidence frequency.” The Specification defines the coincidence
frequency as “the frequency at which the flexural oscillation wavelength of
the glass sheets equals the wavelength of acoustic waves in air. This
wavelength matching condition leads to improved coupling between the
ambient and flexural acoustic modes and less attenuation at the
corresponding frequency.” (Spec. 14 [0068]; emphasis added.) In other
words, at the coincidence frequency, more sound is transmitted through the
glass laminate. As a result, the Specification reveals, it is desirable to design
glass laminates having a coincident frequency greater than 5000 Hz
(id. at 15 [0070]), i.e., “outside of the region of greatest sensitivity [of
human hearing] (500 Hz to 5000 Hz)” (id. at [0071]). The transmission loss
is said to increase essentially linearly from 250 Hz to the coincident
frequency “without passing through a local minimum within the specified
frequency range.” (Id. at [0070].) Thus, if the coincidence frequency is set
to be greater than 5000 Hz, a person would not perceive an increase in noise
at audible frequencies transmitted through such a laminate.
Figure 5, reproduced on the next page, shows that the coincident
frequency increases as the glass gets thinner. In particular, when the
laminate is less than about 2 mm thick, the coincident frequency is higher
than about 5000 Hz. The chemically strengthened glazing allows strong,
thinner glass laminates, and thus a wider frequency range of uninterrupted
sound dampening.
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{Figure 5 is shown below}

{Figure 5 shows the increase in coincident frequency with the decrease in
laminate thickness.}
The ′215 Specification reports two models for the acoustic dampening
performance of chemically strengthened glass laminates. In the first model,
although thinner laminates are said to “have a loss in the mass-controlled
regime below 1 kHz, the increased coincidence frequency may increase
attenuation in the 2–5 kHz regime, and therefore lead to a net benefit in the
STC [sound transmission class] rating.” (Id. at 16 [0075].) In the second
model, “the thinner sheets and lower aspect ratio of the thinner glass
laminates makes the laminate structure more compliant, which results in
higher shear strain in the polymer interlayer that can lead to higher damping
performance.” (Id.) Moreover, according to the Specification, “as between
chemically-strengthened and non-chemically-strengthened glass sheets,
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there may be [a] small but significant difference at the glass-polymer
interlayer interface that contributes to higher shear strain in the polymer
layer.” (Id. at [0076].) Furthermore, the Specification states that different
physical and mechanical properties of the glasses and the chemically
strengthened glasses, “including modulus, Poisson’s ratio, density, etc., . . .
may result in a different acoustic response.” (Id.)
Claim 1 is representative and reads:
A glass laminate comprising
a polymer interlayer formed over a first major surface of
a first chemically-strengthened glass sheet, and
a second glass sheet separated by the polymer interlayer
from the first glass sheet,
the first and second glass sheets having:
a thickness less than 2.0 mm; and
a near-surface region under a compressive stress,
wherein the compressive stress (CS) at a surface of
the first glass sheet is greater than 300 MPa, and
the near surface region extends from a surface of the
first glass sheet to a depth of layer (in micrometers)
having a value of at least 65 − 0.06(CS)
where CS is the surface compressive stress in MPa,
and
wherein the glass laminate has a transmission loss
that does not decrease by more than 1 dB over
any 100 Hz interval over a frequency range from 250
to 5000 Hz.
(Claims App., Br. 20; some formatting, and emphasis added.)
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The Examiner maintains the following grounds of rejection5, 6:
A. Claims 1–6, 8–11, 14, 15, 18–20, and 23–25 stand rejected
under 35 U.S.C. § 103(a) in view of the combined teachings
of Benson,7 and Glaesemann.8
A1. Claims 12 and 13 stand rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Benson, and Glaesemann,
and Littell.9
A2. Claim 20 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Benson, and Glaesemann, and
Tomozane.10
B. Discussion
The Board’s findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Fisher presents arguments for patentability based on limitations
recited in claim 1, without raising substantively distinct arguments for any

5 Examiner’s Answer mailed 27 July 2018 (“Ans.”).
6 Because this application was filed before 16 March 2013, the effective
date of the America Invents Act, we refer to the pre-AIA version of the
statute.
7 Vernon C. Benson, Jr., and Glenn E. Freeman, Sound absorbing article
and method of making same, U.S. Patent No. 6,119,807 (2000).
8 Gregory Scott Glaesemann et al, Damage resistant chemically-toughened
protective cover glass, U.S. Patent Application Publication
2009/0202808 A1 (2009).
9 Harry E. Littell, Jr., Integral transparent safety glass armor unit, U.S.
Patent No. 3,671,370 (1970).
10 Shotaro Tomozane et al., Shaped glass sheet and a process for the
preparation thereof, U.S. Patent No. 5,589,248 (1996).
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other claim. (Br. 18–19, §§ B & C.) All claims stand or fall with claim 1.
37 C.F.R. § 41.37(c)(1)(iv) (2017).
The Examiner finds (FR 4) that Benson teaches laminates [for side or
rear windows] having glass lamina less than 2.0 mm thick [preferably 1.5–
2.5 mm, most preferably 1.9–2.1 mm (Benson col. 4, ll. 34–40)]. The
Examiner finds further (FR 5–6, ¶ 4) that Benson also cites prior art
teachings to avoid the “coincidence effect,” ordinarily at around 2000 Hz, at
which frequency the sound transmission increases (i.e., the attenuation of
sound at that frequency decreases) (Benson col. 1, l. 61–col. 2, l. 20) by:
“increasing the mass of the laminated glass, multi-layered glass,
segmentation of the glass area, improvement of the facilities to support the
glass plate and improvement in the interlayer film for laminating the glass
sheets” (id. at col. 2, ll. 26–31, citing EP 0 566 890.) The Examiner finds
(FR 4, ¶ 2) that Benson suggests the use of chemically strengthened glass
(Benson col. 12, ll. 9–10), but that Benson does not disclose any of the
parameters required by the claims.
The Examiner finds that Glaesemann teaches such chemically
strengthened glass [for touch-screens]. (FR 4–5, ¶ 3 (citing Glaesemann
[0009], [0036], and [0037).)
The Examiner concludes that the subject matter of claim 1 would have
been obvious on a theory of inherency (the same structure, a glass laminate
with glass layers less than 2.0 mm thick, made of the same materials
(chemically strengthened glass meeting the recited CS and layer depth
limitations) would have the same acoustic properties). Alternatively, given
that the prior art described in Benson taught that “it is necessary to mitigate
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the coincidence effect described above to prevent the decreases in the
minimum transmission loss caused by the coincidence effect ([Benson]
column 2, ll. 21–31)” (FR 5, ¶ 4), the Examiner concludes that “not only
were these properties well-known in the art before the filing of the instant
invention, but the knowledge of varying certain factors to modify the values
of these properties was also well-known in the art.” (Id.)
In response to Fisher’s arguments that inherency in the obviousness
rejection cannot be maintained because the acoustic properties due to the
chemically-strengthened glass sheet were not known at the time of the
invention, the Examiner reasons that “Applicants have not shown any proof
that the relationship between such acoustic properties with chemical-
strengthening of glass sheets were not known at the time of their invention.”
(FR 8, 2d para.)11 The Examiner then cites three U.S. Patents and five
abstracts of foreign patent publications (one Korean, three Soviet, and one
Japanese). The Examiner finds that the Japanese abstract and the last U.S.
Patent, No. 5,145,95312 (hereinafter, “de Moncuit”) “especially make
mention of the relationship between chemically-strengthened glass sheets
and the two claimed sound properties of transmission loss and coincident
frequency.” (FR 8, last full sentence (citing de Moncuit col. 7, ll. 28–37).)

11 We are not aware of any requirement that an applicant need prove that
persons skilled in the art did not know of some relation or fact in the art.
Proving such a negative “fact” is, practically speaking, impossible. The
burden was on the Examiner to prove that such a relation was known.
12 Frédéric de Moncuit et al., Composite glazing panel, U.S. Patent
No. 5,154,953 (1992).
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The Examiner provides no further description or analysis of any of these
documents.
Fisher argues that “[a]s compared to non-chemically-strengthened
glass sheets, chemically-strengthened glass sheets can have a small but
significantly different glass-polymer interlayer interface that can contribute
to a higher shear strain on the polymer interlayer and, thus, produce
improved acoustic damping properties.” (Br. 13, 2d full para. (citing
Spec. [0067], [0072], [0073], and [0076]).) “There is no teaching
whatsoever in the prior art,” Fisher urges, “that a chemically-strengthened
glass sheet, when used in a laminate, can provide improved acoustic
damping performance as compared to a laminate not comprising a
chemically-strengthened glass sheet.” (Br. 17, last para.)13 Because
inherency in an obviousness rejection cannot be predicated on what is not
known in the art, Fisher concludes, the rejection based on Benson and
Glaesemann must be reversed. (Id. at 18, 1st full para.)
The Examiner maintains the rejections in the Answer, and elaborates
on the teachings of de Moncuit (only), quoting, with added commentary, the
cited passage, which reads (without the Examiner’s commentary):
Advantageously, the panel includes at least one vitreous
sheet which is of chemically tempered glass and is not more
than 2 mm thick. Being tempered, such a sheet will have
good resistance to breakage, and it will also have a rather
high critical frequency of coincidence (above 6000 Hz) and
is useful for masking lower frequency coincidence

13 In this regard, Fisher provides a brief summary and analysis of each of the
additional documents cited by the Examiner in the Final Rejection (copies of
the abstracts were not provided, and the abstracts were not listed on the form
PTO-892 attached to the Final Rejection). (Br. 14–17, § 5.)
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transmission peaks of other parts of the panel when it is not
dynamically coupled to another sheet.
(de Moncuit col. 7, ll. 28–37.)
Regarding this passage, Fisher urges that
[t]his passage thus merely discloses a coincidence frequency
for a single (e.g., uncoupled) chemically tempered glass
sheet. This passage does not disclose the coincident
frequency of a laminate comprising such a glass sheet, much
less teach or suggest that the sound dampening properties of
a laminate can be improved by including at least one
chemically-strengthened glass sheet in the laminate.
(Br. 17, 1st full para.)
The late citation of de Moncuit (in the “Response to Argument”
section of the Final Rejection), without specific analysis by the Examiner
until the “Response to Argument” section of the Examiner’s Answer, left
Appellant Fisher in the unfair position of having to speculate in the Brief as
to how the Examiner intended to apply this reference, which was one of
eight references cited without analysis in support of the same proposition.
While it is true that Fisher did respond substantively to the eight
references cited by the Examiner in the Final Rejection, and hence had some
notice of the Examiner’s position, it was not until the Response to Argument
section of the Examiner’s Answer that the Examiner made clear the
particular importance of de Moncuit’s teachings. While it is true that Fisher
did not file a Reply Brief, and hence did not take full advantage of every
opportunity to be heard, it should also be noted that it is presumed that new
evidence is not relied on without notice in a final rejection. A reason for this
is that a full reply to new findings of fact not previously in the record often
requires citations of further facts that are not be in the record, but the
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regulations governing appeals forbid expressly reliance on evidence not of
record.14 Before a case goes on appeal, the record must be complete,
because appeals before the Patent Trial and Appeal Board are based on the
record. 37 C.F.R. § 41.37(c)(1)(iv) (2017). As the predecessor to our
reviewing court stated in a similar situation, “[w]here a reference is relied on
to support a rejection, whether or not in a ‘minor capacity,’ there would
appear to be no excuse for not positively including the reference in the
statement of the rejection.” In re Hoch, 428 F.2d 1341, 1342 n.3
(CCPA 1970). In the present case, as discussed below, the teachings of de
Moncuit are not present in a mere “minor capacity” in the rejections.
On the basis solely of the combined teachings of Benson and
Glaesemann, it can be argued that the Examiner established a prima facie
case of obviousness based on Benson’s teachings that laminates having glass
sheets less than 2 mm thick are useful as side or rear windows, and the
suggestion that chemically strengthened sheets are useful, plus
Glaesemann’s teachings of specific chemically tempered glass sheets
meeting the requirements of the claims. The reasons for combining
references do not have to be the same as those of applicants. In re Kahn,
441 F.3d 977, 990 (Fed. Cir. 2006) (“[T]he skilled artisan need not be
motivated to combine [the prior art] for the same reason contemplated by
[the inventor].”) However, the inquiry into obviousness does not end with
the prima facie case, as secondary considerations such as the question of
unexpected results, if raised, must be considered. If, based on the applied

14 “A brief shall not include any new or non-admitted affidavit or other
Evidence.” 37 C.F.R. § 41.37(c)(2).
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prior art of record, the weight of the evidence is that a certain property of an
article of manufacture would not have been expected, an unexpected result
has been established. In re Mayne, 104 F.3d 1339, 1343, 41 USPQ2d 1451,
1455 (Fed. Cir. 1997) (“An examination for unexpected results is a factual,
evidentiary inquiry . . . ”). That evidence must be weighed against the
evidence in favor of obviousness. In re Rouffet, 149 F.3d 1350, 1355 (Fed.
Cir. 2000) (“Whether the evidence presented suffices to rebut the prima
facie case is part of the ultimate conclusion of obviousness and is therefore a
question of law.”).
The Examiner cites no credible evidence that the prior art cited by
Benson provides “knowledge of certain factors to modify” that would have
led to the reasonable expectation that reducing the thickness would result in
avoidance of the “coincidence effect” discussed by Benson. In particular,
the Examiner has not explained how any of the “various ways to prevent the
decrease in the TL value, such as an increase in the mass of the laminated
glass, multi-layered glass, segmentation of the glass area, improvement of
the facilities to support the glass plate and improvement in the interlayer
film for laminating the glass sheets” (Benson, col. 2, ll. 26–31) would have
provided a teaching equivalent to providing thinner glass sheets. Thus, the
case for a reasonable expectation of successfully varying known parameters
in a known way to achieve an expected result has not been made on the basis
of Benson and Glaesemann alone.
The reliance on inherency in an obviousness rejection, which
necessarily relies on the combination of separate teachings (else the rejection
would be for anticipation) is particularly problematic when, as here, the
recited properties arise from the combination of elements, rather from a
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single element described in one of the references. Many inventions are
understandable and “obvious” after the fact, but were not so perceived
before the invention was described. Thus, while the Examiner has identified
certain combinations of laminates having properties suggested by Benson
and by Glaesemann that would have been prima facie obvious, the Examiner
has not shown that the routineer would have expected those combinations to
have had the acoustic transmission properties asserted to be unexpected by
Fisher.
de Moncuit, however, provides evidence that it was known in the art,
prior to Fisher’s filing date, that providing glass sheets thinner than 2 mm to
a laminate would also provide a frequency of coincidence greater
than 6000 Hz. Fisher’s argument that de Moncuit is concerned only with “a
single (e.g. uncoupled) chemically tempered glass sheet” and “does not
disclose the coincident frequency of a laminate comprising such a glass
sheet” (Br. 17, 1st full para.) are rebutted directly by de Moncuit.
de Moncuit acknowledges that the behavior of laminated glazing panels is
more complicated than single sheets “because of the different natures of the
intervening layers of adhesive material and of the glass.” (de Moncuit
col. 1, ll. 56–59.) de Moncuit continues,
However in a typical safety laminate there must be a rather
strong bond between the glass and the adhesive so that in the
event of breakage fragments of the glass are retained by the
panel and do not fly off and possibly cause injury. In fact the
acoustic behaviour of typical laminated safety glazings is
scarcely distinguishable from the acoustic behaviour of a
single monolithic sheet of glass of the same shape and area as
the laminate and of the same thickness as the total thickness
of the glass in the laminate. Thus for the purposes of this
specification and as regards their acoustic properties, such
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conventional laminates are considered as equivalent to a
single monolithic sheet. [(Id. at col. 1, l. 59–col. 2, l. 3
(emphasis added).)]
We conclude that, in light of the teachings of de Moncuit, a person
having ordinary skill in the art would have expected, reasonably, that using
thinner, chemically tempered glass sheets such as those suggested by
Glaesemann, for the thin (less than 2-mm thick) glass laminates suggested
by Benson for side and rear windows) would have the favorable sound
transmission loss characteristics required by claim 1.
We have last to address the allegedly unexpected “acoustic properties
of chemically-strengthened glass sheets as incorporated into laminates . . .
not previously recognized or appreciated by Benson or Glaesemann.”
(Br. 14, 3d para.) While such an assertion is made in the Specification,
those disclosures are presented as hypotheses. (Spec. 16 [0075]–[0076].)
Moreover, there appear to be no comparisons of, e.g., soda-lime glass
laminates with glass sheets less than 2.0 mm thick, with chemically
strengthened glass sheets of the same thickness. We therefore accord the
assertion of unexpected acoustic properties of chemically strengthened glass
sheets little, if any, evidentiary weight. In re Soni, 54 F.3d 746, 750 (Fed.
Cir. 1995) (“[i]t is well settled that unexpected results must be established by
factual evidence. Mere argument or conclusory statements in the
specification does not suffice.”) (quotes and citations omitted).
Had the Examiner presented these arguments, including the discussion
of de Moncuit, first made in the Examiner’s Answer, in the Final Rejection,
we should have had little difficulty affirming the rejection, as Fisher would
have been afforded effective notice of the full basis of the Rejection.
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We correct the problem by affirming in view of the references
actually relied on: Benson, Glaesemann, and de Moncuit.
To cure the disadvantage to Fisher, we denominate the affirmance as a
new ground of rejection.
C. Order
It is ORDERED that the rejection of claims 1–6, 8–15, 18–21,
and 23–25 is affirmed in view of the combined teachings of Benson,
Gleasemann, and de Moncuit.
This decision contains a new ground of rejection.
37 C.F.R. § 41.52(a)(1) provides that “Appellant may file a single request
for rehearing within two months of the date of the original decision of the
Board.” 37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected,
or both, and have the matter reconsidered by the examiner, in which
event the proceeding will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same Record.
Should Appellants elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek
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review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
prosecution before the Examiner unless, as a mere incident to the limited
prosecution, the affirmed rejection is overcome.
If Appellant elects prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.
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
37 C.F.R. § 41.50(b)