10641221 (B.P.A.I. Aug. 16, 2012)

Ex Parte Linz et al

Board of Patent Appeals and InterferencesAug 16, 2012

10641221 (B.P.A.I. Aug. 16, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/641,221 08/08/2003 Wilfried Linz 1064-001 9435 27820 7590 08/16/2012 WITHROW & TERRANOVA, P.L.L.C. 100 REGENCY FOREST DRIVE SUITE 160 CARY, NC 27518 EXAMINER DEHGHAN, QUEENIE S ART UNIT PAPER NUMBER 1741 MAIL DATE DELIVERY MODE 08/16/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte WILFRIED LINZ, GERHARD NUSSLE, GERHARD LAUTENSCHLAGER, and FERDINAND SCHULTHEIS ____________ Appeal 2011-008768 Application 10/641,221 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, PETER F. KRATZ, and DEBORAH KATZ, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134 from the Examiner's rejections under 35 U.S.C. Â§ 103(a) of claims 1, 2, 4, 18-20, 22, 23, and 25- 27 as unpatentable over Lythgoe (US 4,764,198, patented Aug. 16, 1988) in view of Arbeit (US 2,677,003, patented Apr. 27, 1954) and Stultz et al. (US 3,771,986, patented Nov. 13, 1973) and of claim 28 as unpatentable over these references and further in view of Muniz et al. (US 5,613,994, patented Mar. 25, 1997). We have jurisdiction under 35 U.S.C. Â§ 6. We AFFIRM. Appeal 2011-008768 Application 10/641,221 2 Appellants claim a method for refining a glass melt in a melting cistern 1 having a melt region 2 and a refining region 3 separated from each other by a refining wall 6, the method comprising guiding the glass melt over the refining wall which comprises a plate 7 supported within a gap in the wall "wherein the thickness of the plate in the direction of the flow of the glass melt is limited and is chosen as a function of the flow force of the glass melt in such a way that a resulting counter force to the flow force of the glass melt is produced, which corresponds in magnitude with the flow force of the glass melt to prevent any deformation or detachment of a connection of said plate with the melting cistern" (claim 1; Figs. 1-5). Representative claim 1 reads as follows: 1. A method for refining a glass melt in a melting cistern comprising a melt region and a refining region, separated from each other by a single refining wall, comprising the steps of: guiding the glass melt over the single refining wall, wherein the single refining wall is non-cooled and comprising a plate extending transversally and perpendicularly to a direction of flow of the glass melt, and wherein the single non-cooled refining wall and the plate project perpendicularly from a cistern floor within the melting cistern and extend across a width of the melting cistern, and wherein said plate is made of a refractory metal or of an alloy of a refractory metal; and supporting the plate within a gap in the single non-cooled refining wall such that the plate is fixed at the bottom, wherein an upper edge of the plate stands freely within the glass melt to form a weir within the melting cistern relative to the direction of flow of the glass melt, and wherein the weir has a horizontal overflow edge which is situated beneath a level of the glass melt, wherein the thickness of the plate in the direction of the flow of the glass melt is limited and is chosen as a function of a flow force of the glass melt in such a way that the resulting counter force to the flow force of the Appeal 2011-008768 Application 10/641,221 3 glass melt is produced, which corresponds in magnitude with the flow force of the glass melt to prevent any deformation or detachment of a connection of said plate with the melting cistern. Appellants' arguments are directed to sole independent claim 1 only (App. Br. 10-13). Additional arguments have not been separately presented for the dependent claims under rejection including separately rejected dependent claim 28 (id.). As a consequence, we will focus on sole independent claim 1 in our disposition of this appeal, and the dependent claims will stand or fall with claim 1. The Examiner concedes that upstanding projection (i.e., refining wall) 45 of Lythgoe's Figure 6 embodiment does not include a refractory metal plate whose upper edge stands freely within the glass melt as required by claim 1 (Ans. para. bridging 4-6). However, the Examiner finds that Shultz teaches or would have suggested preventing wear of a wall from flowing glass melt by providing the wall with a gap supporting a refractory metal plate whose upper edge stands freely within the glass melt (id.). In light of this finding, the Examiner concludes that it would have been obvious to provide Lythgoe's refining wall (i.e., upstanding projection) with a gap supporting a refractory metal plate as required by claim 1 in order to prevent wear of the wall from flowing glass melt (id.).1 Appellants point out that the upstanding projection in Figure 6 of Lythgoe provides a barrier for the return flow of glass melt and argues that 1 The Examiner discusses but does not rely on the Arbeit reference in concluding that the subject matter of independent claim 1 would have been obvious (id.). Accordingly, we will not consider Arbeit in our disposition of this appeal. Appeal 2011-008768 Application 10/641,221 4 "[t]his teaches away from the claimed invention, as the claimed invention does not use a . . . projection to bar the return flow of glass melt at the bottom of the cistern, but instead uses a thin, non-cooled refractory metal plate as a weir-like refining wall, which provides a clearly defined overflow edge with minimized contact for the extremely hot part of the glass melt that is close to the surface" (App. Br. 10). Appellants' argument is unpersuasive. Based on the record of this appeal, Lythgoe's upstanding projection is indistinguishable from the refining wall of claim 1. Furthermore, Appellants identify nothing in Lythgoe which discourages, and therefore teaches away from, providing this upstanding projection with a refractory metal plate as required by claim 1. See In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("[a] reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant."). Appellants also argue that neither Lythgoe nor Stultz contains any teaching or suggestion of a plate having a thickness which is limited and chosen as a function of a flow force of the glass melt as required by claim 1 (App. Br. 11, 12; Reply Br. 4-6). We perceive no convincing merit in this argument. In combining Lythgoe and Stultz in the manner proposed by the Examiner, an artisan would have provided the plate with a thickness adequate to prevent deformation or detachment due to flow force of the glass melt in accordance with claim 1. The provision of inadequate (or excessive) thickness would be Appeal 2011-008768 Application 10/641,221 5 contrary to the presumption that an artisan has ordinary skill. See In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985). Finally, Appellants argue that Stultz would not have suggested supporting the plate within a gap as required by claim 1 (App. Br. 12-13; Reply Br. 7). We are not persuaded by Appellants' argument. As correctly indicated by the Examiner (see, e.g., Ans. 11), Stultz teaches supporting plate 16 within slot 14 (see, e.g., Fig. 2). We agree with the Examiner that this teaching would have suggested providing Lithgoe's upstanding projection with a slot or gap for supporting the plate as required by the claim under review. For the reasons stated above, Appellants have failed to reveal any error in the Examiner's conclusion of obviousness for the method defined by claim 1. We sustain, therefore, each of the above Â§ 103 rejections. The decision of the Examiner 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). AFFIRMED cam