Intevac, Inc.Download PDFPatent Trials and Appeals BoardMay 26, 20202019004335 (P.T.A.B. May. 26, 2020) Copy Citation 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. 14/805,418 07/21/2015 David Ward Brown 048635-121000 9945 146807 7590 05/26/2020 WOMBLE BOND DICKINSON (US) LLP Attn: IP Docketing P.O. Box 7037 Atlanta, GA 30537-7037 EXAMINER MCDONALD, RODNEY GLENN ART UNIT PAPER NUMBER 1794 NOTIFICATION DATE DELIVERY MODE 05/26/2020 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): IPDocketing@wbd-us.com Joseph.Bach@wbd-us.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID WARD BROWN, CHARLES LIU, and JUN XIE Appeal 2019-004335 Application 14/805,418 Technology Center 1700 Before JEFFREY R. SNAY, LILAN REN, and JANE E. INGLESE, Administrative Patent Judges. REN, 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 11–30. See Final Act. 3. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Intevac, Inc.” Appeal Br. 2. Appeal 2019-004335 Application 14/805,418 2 CLAIMED SUBJECT MATTER The claims are directed to “glass coating that improves scratch resistance and hydrophobic/oleophobic properties for use in, for example, touch screen displays.” Spec. ¶ 2. Claim 11, reproduced below, is illustrative of the claimed subject matter: 11. A method for providing protective coating on a front surface of a glass, comprising: forming a diamond-like coating over the front surface of the glass; performing passive sputtering, wherein only material from a silicon sputtering target is deposited on the diamond-like coating, so as to form a silicon protective layer directly on the diamond-like coating; performing reactive sputtering to form an adhesion layer directly on the silicon protective layer; and forming an anti-finger print layer directly over the adhesion layer. Claims Appendix (Appeal Br. 12). REFERENCES The prior art relied upon by the Examiner are: Name Reference Date Kimock McLeod Thomsen US 5,637,353 US 6,290,821 US 6,808,606 B2 June 10, 1997 Sept. 18, 2001 Oct. 26, 2004 Demaray Mashimo Akao Noguchi US 2002/0134671 A1 US 2015/0138638 A1 JP02013155399A JP02008096828A Sept. 26, 2002 May 21, 2015 Aug. 15,2013 Apr. 24, 2008 Appeal 2019-004335 Application 14/805,418 3 REJECTIONS Claims 11, 12, 13, 19, 20, and 23 are rejected under 35 U.S.C. § 103 as being unpatentable over Kimock in view of Demaray, McLeod, and Mashimo. Final Act. 3. Claims 14–18 are rejected under 35 U.S.C. § 103 as being unpatentable over Kimock in view of Demaray, McLeod, Mashimo, and Akao. Final Act. 6. Claim 21 is rejected under 35 U.S.C. § 103 as being unpatentable over Kimock in view of Demaray, McLeod, Mashimo, and Noguchi. Final Act. 7. Claim 22 is rejected under 35 U.S.C. § 103 as being unpatentable over Kimock in view of Demaray, McLeod, Mashimo, and Thomsen. Final Act. 8. Claims 24 and 30 are rejected under 35 U.S.C. § 103 as being unpatentable over Kimock in view of Mashimo. Final Act. 9. Claims 25–29 are rejected under 35 U.S.C. § 103 as being unpatentable over Kimock in view of Mashimo, and Demaray. Final Act. 10. 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. Cf. Ex parte Frye, 2010 WL 889747, *4 (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 having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that reversible error has been identified, and we affirm Appeal 2019-004335 Application 14/805,418 4 the Examiner’s § 103 rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Claim 11 Appellant argues that the Examiner reversibly erred in rejecting claim 11 because, according to Appellant, “the second interlayer (top layer 4) of Kimock cannot be reasonable [sic.] read as the claimed protective layer and the second DLC layer (top layer 3) cannot be read as the claimed adhesion layer.” Appeal Br. 6. Appellant argues that “Kimock teaches that the adhesion layer 4 is an oxide or a nitride layer, which is formed by chemical vapor deposition, not passive sputtering” and that a skilled artisan “would understand that the second interlayer 4 of Kimock is actually similar to the adhesion layer of the subject Application, not the claimed protective layer.” Id. at 7. We are not persuaded by this argument first and foremost because Appellant does not direct us to a definition of the recited “protective layer” and “adhesion layer” that would exclude the prior art layers. Appellant does not structurally distinguish the prior art layers from the recited “protective” and “adhesion” layers. “‘Functional’ terminology may render a claim quite broad. By its own literal terms a claim employing such language covers any and all embodiments which perform the recited function.” In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). Appellant’s argument is unpersuasive also because it does not address the Examiner’s finding that Kimrock 4:61–67 and 5:1–9 “teach that the interlayers can be ‘chemically vapor deposited’ and that ‘chemically vapor deposited’ covers magnetron sputtering” in Appeal 2019-004335 Application 14/805,418 5 support of the rejection. Ans. 13.2 Lastly, we are not persuaded because the argument is not supported by evidence. “Attorneys’ argument is no substitute for evidence.” Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Appellant next argues that the Examiner reversibly erred for failing to provide an explanation as to why a skilled artisan would have combined the references. Appeal Br. 8. Appellant, however, does not address the Examiner’s rationale articulated in the Final Action in support of the rejection. For example, the Examiner cites Demaray ¶ 19 for the teaching of “producing dense amorphous silicon layers,” McLeod at 7:37–44 for the teaching of “reactively sputtering DLC,” Mashimo ¶ 11 for the teaching of “producing optical elements,” and finds that a skilled artisan would have combined the references “because it allows for producing dense amorphous silicon layers, reactively sputtering DLC and for producing optical elements.” Final Act. 5. The Examiner also explains that a skilled artisan would have combined Kimock with Demaray because Kimrock teaches “forming silicon layers by sputtering,” whereas Demaray teaches a sputtering process. Ans. 14 (citing Kimrock 4:61–67 and 5:1–9). The Examiner also states that a skilled artisan would have combined the references because “each reference provides guidance on how to deposit the various layers to produce coated substrates.” Id. Appellant’s argument that “Mashimo does not mention the problem that forming an AFC layer over a DLC layer causes” (Appeal Br. 9) is unpersuasive. First and foremost, Appellant’s statement that it “is well 2 No Reply Brief was filed. Appeal 2019-004335 Application 14/805,418 6 known” that “a DLC layer is slippery and therefore an AFC layer would not adhere well to the DLC” is unsupported by evidence. Id. The argument is unpersuasive also because it is not commensurate in scope with claim 11 – which requires no more than the recited steps without any particular parameter or degree of adhesion achieved by the adhesion layer. Claim 12 Claim 12 depends from claim 11 and further recites “wherein the passive sputtering is performed using argon gas, and the silicon sputtering target consisting of silicon.” Appellant argues that the Examiner reversibly erred for failing to provide a rationale to combine the references. Appeal Br. 9. We are not persuaded by this argument because it does not address the Examiner’s rationale in support of the rejection. Compare id., with Final Act. 5 (citing Demaray ¶ 19, McLeod at 7:37–44 and Mashimo ¶ 11 in support of the reason to combine the references); see also Ans. 14 (citing Kimrock 4:61–67 and 5:1–9 in support of the reason to combine). Appellant’s unelaborated statement that “using argon sputtering of silicon target one cannot form the silicon-oxide layer required by Kimock” (Appeal Br. 9) is unpersuasive as it lacks factual support. The rejection of claim 12 is therefore sustained. Claim 13 Claim 13 depends from claim 12 and further recites “wherein the reactive sputtering is performed using a target consisting of silicon while injecting at least one of oxygen and nitrogen gas.” Appellant argues that the Examiner reversibly erred in finding that Kimrock discloses using silicon dioxide for the outermost layer. Appeal Br. Appeal 2019-004335 Application 14/805,418 7 9. Appellant, however, does not address the Examiner’s finding of Mashimo’s teaching that “silicon dioxide and DLC are listed as equivalents.” See Ans. 15 (citing Mashimo ¶ 106). No reversible error has therefore been identified in the Examiner’s factual findings in support of the rejection of claim 13. Claim 14 Claim 14 depends from claim 11 and recites “further comprising hydrogenating the adhesion layer prior to forming the anti-finger print layer.” Appellant’s argument that Akao does not teach to “hydrogenate the SiO2 layer, as claimed” (Appeal Br. 9) is unpersuasive because it is incommensurate in scope with the claim language, which does not recite a silicon oxide layer but an “adhesion layer.” As the Examiner finds, Akao teaches “using steam for hydrogenating an adhesion layer prior to forming an anti-fingerprint layer.” Final Act. 6 (citing Akao Abstract); see also Ans. 16. The rejection of claim 14 is therefore sustained. Claim 17 Appellant does not present an argument for the rejection of claim 17. See Appeal Br. 9–10. The rejection of claim 17 is sustained as a result. Claim 24 Claim 24 is an independent method claim “similar to claim 11 in that it also requires the forming of DLC over the substrate, a silicon layer directly over the DLC, an adhesion layer directly over the silicon layer, and an AFP layer directly over the adhesion layer.” Appeal Br. 10. Appellant repeats the same arguments for claim 24 as those for claim 11, which we addressed supra. See id (arguing, for example, that the Examiner erred for Appeal 2019-004335 Application 14/805,418 8 reading “Kimock’s interlayer 4 on the claimed oxide layer and top DLC layer 3 on the claimed adhesion layer”). The rejection of claim 24 is sustained for the reasons provided supra with regard to claim 11. Claims 25–27 Appellants list claims 25, 26, and 27 individually and repeats the argument that Kimrock “does not disclose forming a silicon layer.” Appeal Br. 10–11. As noted supra, Appellant’s argument does not address the Examiner’s finding that Kimorck 4:61–67 and 5:1–9 teaches “forming silicon layers by sputtering.” See Ans. 16. The rejection of claims 25–27 is accordingly sustained. Remaining Claims Appellant does not separately argue for remaining claims and the rejections of these claims are sustained. See Appeal Br. 4–11; see also 37 C.F.R. § 41.37(c)(1)(vii). CONCLUSION The Examiner’s rejections are affirmed. More specifically, Appeal 2019-004335 Application 14/805,418 9 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 11, 12, 13, 19, 20, 23 103 Kimock, Demaray, McLeod, Mashimo 11, 12, 13, 19, 20, 23 14–18 103 Kimock, Demaray, McLeod, Mashimo, Akao 14–18 21 103 Kimock, Demaray, McLeod, Mashimo, Noguchi 21 22 103 Kimock, Demaray, McLeod, Mashimo, Thomsen 22 24, 30 103 Kimock, Mashimo 24, 30 25–29 103 Kimock, Mashimo, Demaray 25–29 Overall Outcome: 11–30 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation