Guardian Glass, LLC

Patent Trials and Appeals Board

Mar 10, 2021

2020002451 (P.T.A.B. Mar. 10, 2021)

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.
15/801,401 11/02/2017 David J. COOPER JAR-3691-4054 9002
124194 7590 03/10/2021
Guardian Glass, LLC (Nixon)
c/o KCPS IP Dept./Shannon Gonsalves
4111 E. 37th Street North
Mail Stop T2C
Wichita, KS 67220
EXAMINER
DEHGHAN, QUEENIE S
ART UNIT PAPER NUMBER
1741
NOTIFICATION DATE DELIVERY MODE
03/10/2021 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):
koch_pair@firsttofile.com
pair_nixon@firsttofile.com
ptomail@nixonvan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID J. COOPER, RYAN L. DEAR,
and ROBERT A. MILLER

Appeal 2020-002451
Application 15/801,401
Technology Center 1700
Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
JENNIFER R. GUPTA, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5, 8–10, and 26–28. See Final Act.
1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Guardian Glass, LLC.
Appeal Br. 2.
Appeal 2020-002451
Application 15/801,401

2
CLAIMED SUBJECT MATTER
The claims are directed to an apparatus for localized heating
techniques incorporating tunable infrared element(s) for vacuum insulating
glass units. Spec. ¶ 12. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. An apparatus for forming an edge seal via seal material in a
vacuum insulated glass (VIG) unit, the apparatus comprising:
a heater comprising a plurality of infrared (IR) heating
elements controllable to emit IR radiation at a peak wavelength
in the near infrared (NIR) and/or short wave infrared (SWIR)
band(s),
the plurality of IR heating elements being spaced apart
from one another so as to have a 2-6” center-to-center distance,
the plurality of IR heating elements being vertically
positioned 2-10” above an upper surface and/or below a lower
surface of a VIG subassembly insertable therein;
a controller operable to adjust an amount of voltage
supplied to the plurality of IR heating elements to vary the peak
wavelength produced by the plurality of IR heating elements for
heating frit of the seal material provided proximate the periphery
of the VIG subassembly in forming the edge seal so as to
preferentially heat the frit compared to glass substrates of the
VIG subassembly;
the controller further configured to control the IR heating
elements during the heating so that when a first portion of the IR
heating elements in a heating area are in an “on” state for heating
the seal material approximately the remainder of the IR heating
elements in the heating area are in an “off” state so that only
partial IR heating element density is employed during said
heating, so that glass substrates of the subassembly do not reach
a temperature of 325 degrees C for longer than 1 minute during
the heating of the frit material;
inner walls comprising a material having characteristics
suitable for causing a reduced amount of IR radiation from the
IR heating elements impinging thereon to be reflected, the
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Application 15/801,401

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reflected IR radiation being reflected in a generally diffuse or
undirected pattern; and
insulation provided around the inner walls.
Independent claim 27 recites a similar apparatus for forming an edge
seal as in claim 1 and recites the same limitation in dispute with respect to a
controller to control the IR heating elements.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Trombe US 3,310,102 Mar. 21, 1967
Mullaney US 3,499,231 Mar. 10, 1970
Danvers US 2003/0020027 A1 Jan. 30, 2003
Aitken et al. (“Aitken”) US 2004/0207314 A1 Oct. 21, 2004
Toas et al. (“Toas”) US 2005/0013980 A1 Jan. 20, 2005
Wang et al. (“Wang”) US 2009/0151855 A1 June 18, 2009

REJECTIONS
Claims 1–4, 8, 9, and 26–28 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Wang in view of Danvers, Trombe, and
Aitken. Final Act. 3.
Claim 5 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Wang, Danvers, Trombe, and Aitken, further in view of
Mullaney. Final Act. 6.
Claim 10 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Wang, Danvers, Trombe, and Aitken, further in view of
Toas. Final Act. 7.

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OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections . . . .”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer.
We add the following for emphasis.
The only dispute is whether the applied prior art teaches or suggest a
“controller configured to” control the IR heating elements “so that glass
substrates of the subassembly do not reach a temperature of 325 degrees C
for longer than 1 minute during the heating of the frit material” as set forth
in each of claims 1 and 27. Appellant argues that the Examiner has not
properly considered the “configured to” clause, and that none of the applied
prior art, including Wang, teaches or suggests this feature (Appeal Br. 11–
13; generally Reply Br.2).

2 Appellant presents arguments for the first time in the Reply Brief based on
case law not discussed in the main brief (Reply Br. 3, 4). Any argument not
presented in the Appeal Brief will not be considered when filed in a Reply
Brief, absent a showing of good cause explaining why the argument could
not have been presented in the Appeal Brief. 37 C.F.R. § 41.41(b)(2)
(2013). Appellant has not shown good cause why the new arguments could
not have been presented in the Appeal Brief.
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These arguments are not persuasive of reversible error. Appellant’s
arguments do not take into account the breadth of the claim language, the
applied prior art as a whole, the knowledge of those of ordinary skill in the
art, and the inferences that one of ordinary skill would have made.
As pointed out by the Examiner, Wang teaches computer control of
the IR heating elements to turn some on while others are off in a similar
apparatus to that claimed here (e.g., Final Act. 5, relying on Wang ¶¶ 73, 74,
78, 79; Ans. 5). Notably, Wang teaches that although the temperature of the
frit on the edge of the assemblies may be controlled to 350–500°C
(Appellant likewise teaches the frit temperature is so controlled),3 “the glass
temperature remains at or close to the background temperature” (Wang
¶ 78). Wang further describes that the background temperature of the glass
substrate is “typically between about 200–300°C” (Wang ¶ 78). Thus,
Wang implies that the glass substrate does not ever reach a temperature
greater than 300°C. Accordingly, one of ordinary skill would have readily
appreciated that the heating elements of Wang are controlled “so that glass
substrates of the subassembly do not reach a temperature of 325 degrees C
for longer than 1 minute during the heating of the frit material” as recited in
independent claims 1 and 27.
Assuming arguendo that Wang does not explicitly suggest the claimed
limitation as discussed above, the claimed subject matter remains
nonetheless obvious. It is well settled that it would have been obvious for an
artisan with ordinary skill to develop workable or even optimum ranges for
result-effective parameters. In re Woodruff, 919 F.2d 1575, 1577 (Fed. Cir.

3 Appellant’s Specification likewise teaches the frit temperature “is
controlled between about 350-500°C” (Spec. ¶ 89).
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1990); In re Boesch, 617 F.2d 272, 276 (CCPA 1980); In re Aller, 220 F.2d
454, 456 (CCPA 1955). Furthermore, “[a] recognition in the prior art that a
property is affected by the variable is sufficient to find the variable result-
effective.” In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir.
2012). One of ordinary skill would have appreciated from the applied prior
art that temperature as well as heating time are result effective variables, and
one of ordinary skill would have also readily inferred that the glass substrate
should not be heated above a maximum temperature for any substantial
length of time (e.g., Wang ¶¶ 43, 78, 79).
As we must “take account of the inferences and creative steps that a
person of ordinary skill in the art would employ,” we find a person of
ordinary skill in the art would have configured the controller to optimize the
maximum time the glass substrate would have been exposed to a maximum
temperature of the glass substrate,4 as well as the temperature of the frit.

4 If the recited “controller configured to” is interpreted as Appellant urges
(Appeal Br. 11–12), then it appears that the “controller configured to” clause
likely invokes 112, sixth paragraph (pre AIA). This limitation does not
include the word “means,” thus, a rebuttable presumption exists that this
limitation is not a means-plus-function limitation. Williamson v. Citrix
Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015). This presumption can
be overcome, however, if the limitation “fails to recite sufficiently definite
structure or else recites function without reciting sufficient structure for
performing that function.” Id. at 1349 (citation and internal quotation marks
omitted). That appears to be the case here. For a computer-implemented
claim limitation interpreted under § 112, sixth paragraph, the corresponding
structure must include the algorithm needed to transform the general purpose
computer/controller or processor disclosed in the specification into the
special purpose computer programmed to perform the disclosed algorithm.
Aristocrat Techs. Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328,
1333 (Fed. Cir. 2008). Thus, the specification must sufficiently disclose an
algorithm to transform the general purpose computer/controller or processor
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KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also id. at 421
(“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.”); Ball Aerosol & Specialty Container, Inc. v. Limited Brands,
Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (under the flexible inquiry set forth
by the Supreme Court, the PTO must take account of the “inferences and
creative steps,” as well as routine steps, that an ordinary artisan would
employ).
Appellant relies on the arguments made for claim 1 for independent
claim 27, as well as all the other claims, not separately arguing any of the
claims, including those separately rejected (e.g., Appeal Br. 13, 14).

to a special purpose processor programmed to perform the disclosed
algorithm. Id. at 1338. It is noted that the Specification does not appear to
disclose any algorithm for this function (Spec. ¶ 106). An indefiniteness
rejection under § 112, second paragraph, may be appropriate if the
specification discloses no corresponding algorithm associated with a
controller, computer or processor. Aristocrat, 521 F.3d at 1337–38. Mere
reference to a general purpose computer/controller or processor with
appropriate programming without providing an explanation of the
appropriate programming, or to “software” without providing detail about
the means to accomplish the software function, is not an adequate disclosure.
Id. at 1334; Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1340–41
(Fed. Cir. 2008). In addition, simply reciting the claimed function in the
specification, while saying nothing about how the computer/controller or
processor ensures that those functions are performed, is not a sufficient
disclosure for an algorithm which, by definition, must contain a sequence of
steps. Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1384 (Fed.
Cir. 2009). Making any new ground of rejection is discretionary, and we
decline to do so. As explained in our opinion, Wang teaches or suggests a
controller that is configured as recited in the claims on appeal. We leave it
to the Examiner to make any such pre-AIA § 112, second paragraph
rejection based on pre-AIA § 112 sixth paragraph analysis in any further
prosecution of this case.
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Accordingly, we sustain each of the Examiner’s § 103 rejections on
appeal.
CONCLUSION
The Examiner’s decision to reject claims 1–5, 8–10, and 26–28 is
AFFIRMED.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 8, 9,
26–28
103 Wang, Danvers,
Trombe, Aitken
1–4, 8, 9,
26–28

5 103 Wang, Danvers,
Trombe, Aitken,
Mullaney
5
10 103 Wang, Danvers,
Trombe, Aitken,
Toas
10
Overall
Outcome
1–5, 8–10,
26–28

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED