Ex parte Gartner et al.

Board of Patent Appeals and Interferences

Jul 31, 1998

08332620 (B.P.A.I. Jul. 31, 1998)

Application for patent filed October 31, 1994. 1
According to appellants, the application is a continuation of
Application No. 07/989,625, filed December 14, 1992, now
abandoned.
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 22
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte GEORG GARTNER and JAN HASKER
____________
Appeal No. 96-2985
Application No. 08/332,6201
____________
ON BRIEF
____________
Before HAIRSTON, MARTIN and LEE, Administrative Patent Judges.
HAIRSTON, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 2,
3, 5 through 7 and 10. Claims 8, 9 and 12 have been found to
contain allowable subject matter.
Appeal No. 96-2985
Application No. 08/332,620
2
The disclosed invention relates to a cathode having a
matrix body impregnated with an alkaline earth compound, and a
two-layer top coat on the surface of the matrix body. The
layer in contact with the matrix body consists essentially of
scandium and a high melting point metal, and the top layer is
a metallic sealing layer that consists essentially of a high
melting point metal.
Claim 10 is the only independent claim on appeal, and it
reads as follows:
10. A cathode having a matrix body impregnated with an
alkaline earth compound, a top coat on the surface of the
body, the top coat comprising a high melting point metal,
characterized in that the coat comprises at least first and
second layers, each of different chemical composition, the
first layer, in contact with the body, consisting essentially
of scandium and a high melting point metal, the second layer
being a metallic sealing layer consisting essentially of a
high melting point metal.
The references relied on by the examiner are:
Thomas et al. (Thomas) 4,101,800 Jul. 18,
1978
Watanabe et al. (Watanabe) 4,855,637 Aug. 8,
1989
Hasker et al. (Hasker) 5,006,753 Apr. 9,
1991
Claims 3 and 10 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Watanabe.
Appeal No. 96-2985
Application No. 08/332,620
Inasmuch as claim 6 depends from claim 2, a proper2
rejection of claim 6 must include Hasker.
3
Claim 2 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Watanabe in view of Hasker.
Claims 5, 6 and 7 stand rejected under 35 U.S.C. § 103 as2
being unpatentable over Watanabe in view of Thomas.
Reference is made to the brief and the answer for the
respective positions of the appellants and the examiner.
OPINION
We have carefully considered the entire record before us,
and we will reverse the obviousness rejection of claims 2, 3,
5 through 7 and 10.
According to the examiner (Answer, pages 3 and 4):
Watanabe discloses a cathode (figure 1) which
has a matrix body (1) impregnated with an alkaline
earth compound (line 63 of column 3) and a top coat
(5 and 6) which comprises a high melting point metal
(line 21 of column 2). The top coat has a first
metallic layer
(5) which is in contact with the matrix body and a
second layer (6) of different composition (ln 21 of
col 4).
Watanabe does not specifically state that the
first layer comprises a high melting point metal and
scandium and that the second layer is a metallic
sealing layer and it comprises a high melting point
metal. However, in lines 24 and 25 of column 5,
Appeal No. 96-2985
Application No. 08/332,620
4
Watanabe discloses that a plurality of these layers
(i.e., first and second layers) are constructed from
a high melting point metal and scandium or a high
melting point metal.
In rebuttal, appellants argue (Brief, pages 4 and 5)
that:
The Watanabe et al patent shows an impregnated
cathode having an impregnated matrix body upon which
there is provided a top coating formed of a
plurality of layers, col. 1, lines 38-47.
Appeal No. 96-2985
Application No. 08/332,620
5
However, this patent does not teach or even
suggest that the top coating be formed so as to
comprise a layer in contact with the matrix body
that consists essentially of scandium and a high
melting point metal and a sealing layer, that has a
different chemical composition from that of the
layer in contact with the matrix body, [and that]
consists essentially of a high melting point metal.
This patent teaches in this portion that all the
layers of the top coating have the same composition,
all of which contain a high melting point metal
(tungsten) and scandium or an oxide of scandium.
Watanabe clearly states (column 1, line 46, column 5,
lines 1 and 2, and column 5, lines 27 and 28) that the two
layers 5 and 6 have “the same composition.” As the two layers
in Watanabe have “the same composition,” they do not have
different compositions, as required by the claim. Moreover,
one layer
cannot consist essentially of “scandium and a high melting
point metal,” and the other layer can not be a “metallic
sealing layer” that consists essentially of a “high melting
point metal.” For this reason, the 35 U.S.C. § 103 rejection
of claims 3 and 10 is reversed.
Turning to dependent claim 2, Hasker discloses an
intermetallic compound or alloy of scandium and rhenium, but
Appeal No. 96-2985
Application No. 08/332,620
6
he does not disclose the two different layers of claim 10.
The
35 U.S.C. § 103 rejection of claim 2 is reversed because
Hasker does not cure the noted shortcoming in the teachings of
Watanabe.
Appeal No. 96-2985
Application No. 08/332,620
7
Turning lastly to claims 5 through 7, Thomas discloses
perforations 24 in the tungsten foil 20, but, like Hasker,
does not disclose the two different layers of claim 10. The
35 U.S.C. § 103 rejection of claims 5 through 7 is reversed
because Thomas does not cure the noted shortcoming in the
teachings of Watanabe.
Appeal No. 96-2985
Application No. 08/332,620
8
DECISION
The decision of the examiner rejecting claims 2, 3, 5
through 7 and 10 under 35 U.S.C. § 103 is reversed.
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN C. MARTIN ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JAMESON LEE )
Administrative Patent Judge )
Appeal No. 96-2985
Application No. 08/332,620
9
Corporate Patent Counsel
U.S. Philips Corporation
Patent Department
580 White Plains Road
Tarrytown, NY 10591
KWH/jrg
JENINE GILLIS

Appeal No. 96-2985
Serial No. 08/332,620
Judge HAIRSTON
Judge MARTIN

Judge LEE
Typed: 30 Jul 98
DECISION: REVERSED

Send Reference(s): Yes No
or Translation(s)
Panel Change: Yes No
3-Person Conf. Yes No
Heard: Yes No
Remanded: Yes No
Index Sheet-2901 Rejection(s): ___________
Acts 2: ____
Palm: ____
Mailed: Updated Monthly Disk: ____
Updated Monthly Report:
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Appeal No. 96-2985
Application No. 08/332,620
11