Ex Parte MATTES et al

Patent Trial and Appeal Board

Oct 11, 2018

13861969 (P.T.A.B. Oct. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/861,969 04/12/2013
3000 7590 10/15/2018
CAESAR RIVISE, PC
7 Penn Center, 12th Floor
1635 Market Street
Philadelphia, PA 19103-2212
FIRST NAMED INVENTOR
Joachim MATTES
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Wl 154/20070 2801
EXAMINER
REYNOLDS, STEVEN ALAN
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
10/15/2018 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):
patents@crbcp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOACHIM MATTES,
BRUNO LICHTENEGGER, and MATTHIAS VIETZ 1
Appeal2018-000761
Application 13/861,969
Technology Center 3700
Before EDWARD A. BROWN, JAMES P. CALVE, and
WILLIAM A. CAPP, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 1--4. Appeal Br. 1. Claims 5-15 are withdrawn. Id.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Wacker Chemie AG is identified as the real party in interest. Appeal Br. 2.
Appeal2018-000761
Application 13/861,969
CLAIMED SUBJECT MATTER
Appellants' disclosure relates to packing for polycrystalline silicon
fragments in an inner film and an outer reinforced film/shaping element to
prevent movement of the silicon and resulting piercing of the inner film.
Spec. 4: 18-21. Claim 1, the sole independent claim, is reproduced below.
1. Polycrystalline silicon in a form a plurality of
fragments or at least one round rod, surrounded by at least one
film of thickness 10 to 1000 µm which encloses the
polycrystalline silicon, wherein the at least one film is
surrounded by a further film having a reinforcing structure or
by a shaping element, said reinforcing structure or shaping
element stabilizing the polycrystalline silicon in the film
enclosing the polycrystalline silicon and providing for
substantial avoidance of relative movement of the
polycrystalline silicon with respect to the film to prevent
piercing and cutting of the film.
REJECTION
Claims 1--4 are rejected under 35 U.S.C. § I03(a) as unpatentable over
Holzlwimmer (US 2005/0034430 Al, pub. Feb. 17, 2005) and Comer
(US 4,029,822, iss. June 14, 1977).
ANALYSIS
The Examiner finds that Holzlwimmer teaches polycrystalline silicon
fragments surrounded by film 7 of a thickness of 10 to 1000 µm, which is
surrounded by a further film 16, but lack a reinforcing structure or shaping
element as recited in claim 1. Final Act. 3. The Examiner finds that Comer
teaches a packaging bag (Fig. 2) comprising an object (meat cut 12) within
in outer film 14 that includes a reinforcing/ shaping element ( shield 10) that
reinforces packaging and corresponds to the shape of the object. Id.
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Appeal2018-000761
Application 13/861,969
The Examiner determines it would have been obvious to provide the
packaging of Holzlwimmer with a reinforcing/shaping element inside the
outer film as taught by Comer to better protect outer film 16 from being
pierced by the polycrystalline silicon contents of the packaging. Id. The
Examiner also finds that the reinforcing/shaping element of the modified
Holzlwimmer-Comer packaging corresponds to the shape of the packaged
polycrystalline silicon so "it will stabilize the polycrystalline silicon in the
film and provide for substantial avoidance of relative movement of the
polycrystalline silicon with respect to the film to prevent piercing and
cutting of the film (as taught by Comer)." Id.
Appellants argue that Comer uses an insert to provide a hard barrier
that prevents bone ends of a piece of meat that is vacuum packaged from
puncturing the bag. Br. 4. Because the meat is vacuum packaged in the bag
and shield, the parts of the meat cannot move against each other; therefore,
Comer teaches away from the problem of packaging polycrystalline silicon,
which must be stabilized by reinforcing structure to avoid relative movement
of the polysilicon fragments, which pierces or cuts the film. Id. at 4--5.
Therefore, a dispositive issue on appeal is whether a skilled artisan
would have been motivated to provide the packaging of Holzlwimmer with
the protective shield of Comer as the Examiner has proposed doing. We
determine the Examiner's reason for providing the shield of Comer inside
outer film 16 of Holzlwimmer lacks a rational underpinning because it is
based on an improper finding that the shield would conform to the shape of
Comer's polycrystalline silicon fragments and stabilize the fragments in the
inner film to provide substantial avoidance of relative movement of the
polycrystalline silicon with respect to the film as claimed. Final Act. 4.
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Appeal2018-000761
Application 13/861,969
As Appellants point out, Comer's shield 10 conforms to the shape of a
piece of meat because shield 10 is placed inside bag 14, between bag 14 and
the piece of meat, and then bag 14 is vacuum sealed around the meat. Br. 4--
5. Comer describes how shield 10 is laid atop a cut of meat and then placed
inside plastic bag 14, which is evacuated to collapse shield 10 tightly against
the surface of the meat, as shown in Figures 2-6. Comer, 6:58-7:28.
As Appellants also point out, Holzlwimmer's packing system does not
apply a vacuum to plastic bags 7, 16 to pack polysilicon fragments therein.
Br. 4--5. Holzlwimmer uses air extraction via a flow box fitted above the
polysilicon filling devices, but does not disclose evacuating plastic bags 7,
16 or fitting plastic bags 7, 16 to packed polysilicon fragments by a vacuum.
Holzlwimmer ,r 19. Even if vacuum packaging would not be detrimental to
the polysilicon fragments (see Ans. 6), the Examiner has not explained why
it would have been obvious to use vacuuming in Holzlwimmer when dual
films 7, 16 already minimize piercing of packaging. Holzlwimmer ,r 14.
The Examiner's finding that Comer's shield would correspond to the
shape of the polycrystalline silicon crystals of Holzlwimmer to stabilize the
fragments in the film and "provide for substantial avoidance of relative
movement of the polycrystalline silicon with respect to the film to prevent
piercing and cutting of the film (as taught by Comer)" is not supported by a
preponderance of evidence. Accordingly, the Examiner's reason for using
Comer's shield in Holzlwimmer is not supported by a rational underpinning.
See In re Biedermann, 733 F.3d 329, 335 (Fed. Cir. 2013) ("The articulated
reasoning and factual underpinnings of an examiner's rejection are, thus,
essential elements of any stated ground of rejection"). Therefore, we do not
sustain the rejection of claim 1 or its dependent claims 2--4.
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Appeal2018-000761
Application 13/861,969
DECISION
We reverse the rejection of claims 1--4.
REVERSED
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