Ex Parte Weidhaus et al

Patent Trial and Appeal Board

Oct 23, 2013

12111291 (P.T.A.B. Oct. 23, 2013)

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.
12/111,291 04/29/2008 Dieter Weidhaus WAS 0953 PUS 7078
22045 7590 10/23/2013
BROOKS KUSHMAN P.C.
1000 TOWN CENTER
TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075
EXAMINER
HORNING, JOEL G
ART UNIT PAPER NUMBER
1712
MAIL DATE DELIVERY MODE
10/23/2013 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DIETER WEIDHAUS, RAINER HAUSWIRTH,
and HARALD HERTLEIN
____________

Appeal 2012-007091
Application 12/111,291
Technology Center 1700
____________

Before CHUNG K. PAK, TERRY J. OWENS, and
JAMES C. HOUSEL, Administrative Patent Judges.

PAK, Administrative Patent Judge

DECISION ON APPEAL
The named inventors (hereinafter “Appellants”)1 appeal under 35
U.S.C. § 134 from the Examiner’s final rejection of claims 1, 2, and 4
through 22, all of the claims pending in the above-identified application.
We have jurisdiction pursuant to 35 U.S.C. § 6(b).

1 Appellants identify the real party in interest as Wacker Chemie AG
(“Assignee”), a corporation organized and existing under the law of the
Federal Republic of Germany. (See Appeal Brief filed Decmeber 6, 2011
(“App. Br.”) at 1.)
Appeal 2012-007091
Application 12/111,291

2
STATEMENT OF THE CASE
The subject matter on appeal is directed to “a continuous process for
the production of high purity polycrystalline silicon in a fluidized bed
reactor.” (Spec. 1, ll. 5-7.) This process is carried out by employing “a
reactor having two directly abutting zones, a first, or lower zone, into which
only dilution gas [(a fluidizing gas)] is fed by a series of nozzles, fluidizing
the bed of polycrystalline silicon granules in the lower zone, and reaction
gas nozzles supplying reaction gas to a second, or reaction zone, the reaction
gas nozzle inlets located above the dilution gas nozzles.” (Spec. 5, l. 25 to 6,
l. 1.)
Details of the appealed subject mattered are recited in illustrative
claim 12 reproduced from page 1 of the Claims Appendix to the Appeal
Brief as shown below (emphasis added):
1. A process for the production of high-purity polysilicon
granules comprising depositing a reaction gas on silicon granules in a
fluidized bed reactor, the process comprising:
providing a reactor having a reactor wall defining the extent of
the fluidized bed, the reactor having a reactor space comprising at
least two zones lying one above the other, wherein a first, lower zone
is weakly fluidized by the introduction of a silicon-free gas into
silicon granules contained in the lower zone, wherein the height of the
lower zone is within the range of 50 to 300 mm, by means of a
plurality of individual dilution gas nozzles, wherein the maximum exit
velocity of the dilution gas from the nozzles is within the range of 20
to 200 m/s and wherein the dilution gas is fed in an amount such that
the gas velocity in the lower zone is 1.2 to 2.3 times the minimum
fluidization velocity, and a second, reaction zone directly abutting the

2 For purposes of this appeal, to the extent that the claims on appeal are
separately argued, we will address them separately consistent with 37 C.F.R.
§ 41.37(c)(1)(vii).
Appeal 2012-007091
Application 12/111,291

3
first, lower zone, the reaction zone heated via its outwardly bounding
reactor wall,
introducing a silicon-containing reaction gas as a vertically
directed gas jet into the reaction zone by one or a plurality of reaction
gas nozzles, wherein the local gas velocities of the gases or of the gas
mixtures at the exit of the nozzle systems are within the range of 1 to
140 m/s, wherein above the reaction gas nozzles local reaction gas
jets surrounded by bubble-forming fluidized bed form, within which
the silicon-containing gas decomposes at silicon particle surfaces and
leads to silicon particle growth, and
introducing the reaction gas such that it has fully reacted or
reacted to at least 85% chemical equilibrium conversion before it
reaches either the reactor wall or the fluidized bed upper surface.

Appellants seek review of the following grounds of rejection
maintained by the Examiner in the Examiner’s Answer mailed February 7,
2012 (“Ans.”):
(1) Claims 1, 2, 4 through 11, 13, 14, 16 through 18, and 20
through 22 under 35 U.S.C. § 103(a) as unpatentable over the combined
disclosures of Hertlein3 and Weidhaus ‘632;4 and
(2) Claim 12 under 35 U.S.C. § 103(a) as unpatentable over the

3 International Patent Application Publication WO 2007/028776 A2
published in the name of Hertlein et al. on March 15, 2007 (“Hertlein”).
Appellants do not question the Examiner’s reliance on the disclosure of US
2008/0241046 A1 published in the name of Hertlein et al. on October 2,
2008 as the English translation of WO 2007/028776 A2 relied upon in the
rejection. (Compare Ans. 4 with App. Br. 4-20 and Reply Brief filed March
30, 2012 (“Reply Br.”) at 1-5.) Our reference to Hertlein is to the English
translation of record, i.e., U.S. Patent Application Publication
2008/0241046.
4 U.S. Patent 7,029,632 B1 issued to Weidhaus et al. on April 18, 2006
(“Weidhaus ‘632”). Appellants inadvertently refer to it as U.S. Patent No.
7,029,032. (App. Br. 4.)
Appeal 2012-007091
Application 12/111,291

4
combined disclosures of Hertlein, Weidhaus ‘632, and Newby;5
(3) Claim 15 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Hertlein, Weidhaus ‘632, and Weidhaus ‘986; 6 and
(4) Claim 19 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Hertlein, Weidhaus ‘632, and Emken.7 (See App.
Br. 4.)

FACT FINDINGS, PRINCIPLES OF LAW, ANALYSES, and
CONCLUSIONS
I. Rejection (1)
Appellants do not dispute the Examiner’s finding that:
Hertlein teaches a process for producing high purity
polysilicon granules comprising depositing a reaction gas on
silicon granules so that it decomposes on the particle surfaces
so that the particles grow in size in a fluidized bed reactor
[0011-0013]. As seen in figure 1, reactor is defined by a reactor
wall which defines the fluidized bed and the reactor has at least
two zones lying on top of each other, the first lower zone
starting from the bottom of the reactor where the silicon free
[0018] fluidization gas 9 [corresponding to the dilution gas
recited in claim 1] enters the bottom of the chamber from a gas
distributor 8 which has a plurality of inlet openings, which can
be considered nozzles8 into the silicon granules. This zone is

5 U.S. Patent 4,651,807 issued to Newby on March 24, 1987 (“Newby”).
6 U.S. Patent Application Publication 2005/0135986 A1 published in the
name of Weidhaus et al. on June 23, 2005 (“Weidhaus ‘986”).
7 U.S. Patent 6,274,191 B1 issued to Emken on August 14, 2001 (“Emken”).
8 Appellants belatedly argue in the Reply Brief that Hertlein does not teach
nozzles for ejecting fluidizing gases. This argument, which was not
presented in the opening Appeal Brief, is considered waived. In re Hyatt,
Appeal 2012-007091
Application 12/111,291

5
fluidized. The first zone ends and a second reaction zone
begins where the silicon containing reaction gas 7 enters the
chamber at what is considered a "high speed" through vertically
direct nozzle 6 (or nozzles see figure 2b) [0024-0037]. The
reaction zone is heated through…by heater 14 [0038].
…
As shown in figure 1, Hertlein further teaches
introducing silicon seed granules from above the reaction zone
[0027] and removing silicon granules that have been deposited
[with silicon via decomposition of the reaction gas] from the
lower reactor zone [00031]. [(Compare Ans. 5 with App. Br. 4-
19 and Reply Brief filed March 30, 2012 (“Reply Br.”) at 1-5.)]
Nor do Appellants question the Examiner’s finding that Hertlein would have
taught the height of the lower zone recited in claim 1. (Compare Ans. 5 with
App. Br. 4-19 and Reply Br. 1-5.)
Instead, Appellants contend that Hertlein, Weidhaus ‘632, or their
combination would not have taught or suggested the gas velocities of
reaction and dilution gases required by claims 1, 11, 13, and 14. (App. Br.

211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting that an argument not first
raised in the brief to the Board is waived on appeal); Ex parte Nakashima,
93 USPQ2d 1834 (BPAI 2010) (informative) (explaining that arguments and
evidence not timely presented in the principal 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 Principal Brief); Ex parte
Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative) (“Properly
interpreted, the Rules do not require the Board to take up a belated argument
that has not been addressed by the Examiner, absent a showing of good
cause.”). To the extent that such argument is not considered waived, we
agree with Examiner the use of appropriate number of nozzles
corresponding to the gas outlet openings in the gas distributors for the
purpose of ejecting a fluidizing gas is well within the ambit of one of
ordinary skill in the art as is apparent from the prior art disclosure of using
nozzles for ejecting gases.
Appeal 2012-007091
Application 12/111,291

6
13-15.) According to Appellants, Hertlein, for example, does not recognize
the claimed gas velocities of diluent and reaction gases as known result
effective variables. (Id. at 15.)
Appellants also contend that Hertlein or Weidhaus ‘632 alone or in
combination would not have taught or suggested converting at least 85% of
the reaction gas before reaching either the reactor wall or the fluidized bed
upper surface or forming jets surrounded by bubble-forming fluidized bed
form as required by claim 1. (Id. at 13-14.) Appellants further contend that
Hertlein or Weidhaus ‘632 alone or in combination would not have
suggested forming the particles sizes and/or spherical shapes of product
granules as recited in claims 18, 20, and 21 and using the Sauter diameter of
the distribution recited in claim 18. (Id. at 15.) Moreover, citing In re
Dembiczak, 175 F.3d 994 (Fed. Cir. 1999), Appellants contend that one of
ordinary skill in the art would not have had the clear and particular
motivation9 to combine the teachings of Hertlein and Weidhaus ‘632. (Id.
at10-15.)
Finally, Appellants contend that “[t]he examples show that the
claimed process is surprisingly and unexpectedly superior in production rate,
longevity, and product uniformity.” (Id. at 8.) In support of this contention,
Appellants assert that:

9 The Supreme Court rejected Appellants’ argument that “the clear and
particular motivation” in Dembiczak would be needed for combining prior
art teachings to arrive at the claimed subject matter. KSR Int'l Co. v. Teleflex
Inc., 550 U.S. 398, 415-19 (2007).
Appeal 2012-007091
Application 12/111,291

7
The Examples show the necessity for appropriately
minimally fluidizing the lower zone and adjusting the flow of
the reactant gas to prevent if rom [sic, it from] contacting the
reactor walls. In Example 1, wall deposition was only 0.05%,
fine particle dust (homogenous gas phase reaction) was less
than 2%, and fine particle dust caused by abrasion was not
detectable. The reactor was shut down (not because of failure)
after 4 weeks (672 hours), while 5 tons of polysilicon granules
were produced.
When the exit velocity of the reactant gas is too high, as
in Example 2, the productivity in kg per hour was reduced by
22%, and reduced even further by the 18% of fine
particles produced through abrasion (which must be separated
from the product).
In Example 3, the reaction gas was too slow. As a result,
the yield in kg/hr. decreased further, and wall deposition
reached 3%, an increase of a factor of 60! In addition, the
homogeneous gas phase reaction generated 15% of amorphous
silicon dust, which again must be removed from the product.
In Example 5, the lower bed was too weakly fluidized,
and particle stagnation near the reactor walls caused an increase
in the heat input to maintain the temperature of the reactant
zone. As a result, even though made of quartz, which has an
extremely high softening temperature, after two days of
operation, the reactor walls deformed. [(Id. at 7-8.)]

Thus, the critical questions raised by Appellants here are:
(1) Would the disclosure of Hertlein, with or without the disclosure
of Weidhaus ‘632, have taught or suggested employing particular or relative
ranges of velocities of dilution (fluidizing) and reaction gases, converting at
least 85% of the reaction gas before reaching either the reactor wall or the
fluidized bed upper surface, and forming jets surrounded by bubble-forming
Appeal 2012-007091
Application 12/111,291

8
fluidized bed form in the fluidized bed reactor of Hertlein’s high purity
polycrystalline silicon producing process as recited in claims 1, 11, 13, and
14?
(2) Would the disclosure of Hertlein, with or without the disclosure
of Weidhaus ‘632, have taught or suggested the particle diameter of silicon
seed particles recited in claims 18 and 20, the Sauter diameter of distribution
recited in claim 18 and the spherical or approximately spherical shape of
product granules recited in claim 21?
(3) If the prima facie case of obviousness is established regarding
the subject matter of any of separately argued claims 1, 11, 13, 14, 18, 20,
and 21, have Appellants demonstrated that the showing in the examples of
the instant application is sufficient to outweigh the evidence of obviousness
reflected in the teachings of Hertlein and Weidhaus ‘632?
On this record, we answer questions (1) and (2) in the affirmative and
question (3) in the negative substantially for the reasons set forth by the
Examiner in the Answer. We add the following primarily for emphasis and
completeness in response10 to Appellants’ arguments in the Appeal
Brief and the Reply Brief.
Notwithstanding Appellants’ arguments to the contrary, Hertlein
teaches that velocities of diluent (fluidizing) and reaction gases were known
result effective variables in its fluidized bed reactor for producing high
purity polycrystalline silicon granules. In particular, Hertlein teaches that its
fluidizing gas is used for the purpose of fluidizing silicon seed granules,

10 See In re Hedges, 783 F.2d 1038, 1039-40 (Fed. Cir. 1986).
Appeal 2012-007091
Application 12/111,291

9
without fluidizing product granules having the desired amounts of silicon
deposits, and its reaction gas is used for the purpose of depositing silicon on
the hot surfaces of the fluidized silicon seed granules to produce highly pure
polycrystalline silicon product granules. (See Ans. 4-5 and Hertlein, ¶¶
[0002]-[0004] and [0028]-[0029].) Hertlein further exemplifies feeding a
fluidizing gas at 290 m3/h (fluidization velocity of approximately1.5 fold)
and a reaction gas at 270 kg/h to obtain desired product granules having an
average diameter of 665 µm. (See Hertlein, ¶¶ [0053] and [0054].)
It follows that Hertlein as a whole indicates that the velocities or flow
rates of its fluidizing (diluent) and reaction gases that affect the fluidization
of silicon particles, the deposition of silicon on the fluidized hot silicon
particles, and the recovery of product granules from the bottom of a
fluidized bed reactor are result effective variables contrary to Appellants’
argument. See In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir.
2012) (“A recognition in the prior art that a property [or a result] is affected
by the variable is sufficient to find the variable result-effective.”)
Consistent with these teachings of Hertlein, Weidhaus ‘632 relied
upon by the Examiner also reveals that the velocities of such fluidizing and
reaction gases are known result effective variables. In particular, Weidhaus
‘632 discloses that the velocity of a fluidizing gas, which is dependent on,
inter alia, the shape, size, density of silicon seed particles, affects the
vertical and horizontal mixing of such particles and the temperature
distribution in the fluidized bed reactor. (See Ans. 7 and compare Weidhaus
‘632, col. 2, ll. 37-64 with Spec. 8, ll. 8-25.) Weidhaus ‘632 also discloses
that its reaction gas must be supplied at an appropriate rate to deposit silicon
Appeal 2012-007091
Application 12/111,291

10
on the heated surfaces of silicon particles. (See col. 5, ll. 50-54.) Weidhaus
‘632 exemplifies the effect of the claimed velocity of a fluidizing gas on
silicon particles in a fluidized bed in the absence of a reaction gas and
exemplifies feeding a fluidizing gas at 27 m3/h (1.5 times the fluidization
velocity), a reaction gas (trichlorosilane) at 30 kg/h, and silicon particles
having a diameter of 250 µm at 0.05 kg/h to produce product granules
having a mean diameter of 780 µm. (See col. 8, Examples 1 and 2.)
Thus, we concur with the Examiner that the determination of the
optimum velocities or flow rates of fluidizing (diluent) and reaction gases,
such those recited in claims 1, 11, 13, and 14, in the process of Hertlein is
well within the ambit of one of ordinary skill in the art. See In re Boesch,
617 F.2d 272, 276 (CCPA 1980) (“[D]iscovery of an optimum value of a
result effective variable in a known process is ordinarily within the skill of
the art.”)
Appellants’ argument that one of ordinary skill in the art would not
have looked to the teachings of Weidhaus ‘632 to improve the process of
Hertlein due to the ejection of reaction gases at different locations of a
fluidized reactor bed is unavailing. First, contrary to Appellants’ argument,
Hertlein, without Weidhaus ‘632, describes that the velocities or flow rates
of its fluidizing (diluent) and reaction gases are result effective variables as
indicated supra. Second, although Weidhaus ‘632 illustrates ejecting a
reaction gas to hot silicon particles above a particle heating zone of a
fluidized reactor bed, its teachings regarding the effect of the velocity of a
fluidizing gas on the fluidized particle mixing and the temperature
distribution and the effect of the velocity of a reaction gas on the deposition
Appeal 2012-007091
Application 12/111,291

11
of silicon on hot fluidized particles at particular reaction conditions are
relevant to the process of Hertlein involving the employment of fluidizing
and reactant gases for the same purposes in a fluidized bed reactor. This is
particularly true in this case inasmuch as Hertlein also teaches that its
process can be carried out by ejecting a reaction gas to hot silicon particles
above a particle heating zone of a fluidized reactor bed as stated in
Weidhaus ‘632 or by ejecting a reaction gas to hot silicon particles in a
heating zone of a fluidized reactor bed. (Hertlein, ¶¶ [0024]-[0037]
describing Fig. 1 and Hertlein, ¶ [0038] describing an alternative
embodiment.)
Appellants’ arguments that Hertlein would not have taught or
suggested converting at least 85% of the reaction gas before reaching either
the reactor wall or the fluidized bed upper surface are also unavailing. As
found by the Examiner, Hertlein teaches the reaction gas being decomposed
to deposit silicon on hot silicon particles, with the concentration of the
reaction gas decreasing to 20 to 80 mol. % as it approaches the wall surface
of the fluidized bed reactor. (See Hertlein, ¶¶ [0004] and [0047].) Hertlein
then teaches that the concentration of the reaction gas is decreased to “0.5 to
5 [mol.] %” at a wall distance of 0 mm and exemplifies a fluidized bed
reaction process where a reaction gas concentration on the reactor wall is 0.1
mol. %, 2 mol. %, or 5 mol. %, respectively. (See Hertlein, ¶¶ [0047],
[0055], and [0061].) Implicit in the above teachings of Hertlein is that at
least 85% of the reaction gas is converted before it can ever reach the reactor
wall. See KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (In
making an obviousness determination one “can take account of the
Appeal 2012-007091
Application 12/111,291

12
inferences and creative steps that a person of ordinary skill in the art would
employ”); In re Preda, 401 F. 2d 825, 826 (CCPA 1968) (“[I]t is proper to
take into account not only specific teachings of the reference but also the
inferences which one skilled in the art would reasonably be expected to draw
therefrom.”)
Furthermore, Appellants’ arguments that Hertlein would not have
taught or suggested forming jets surrounded by gas bubbles in the fluidized
bed reactor are unavailing. As found by the Examiner at page 5 of the
Answer, Hertlein, at paragraph 0039, discloses installing a gas bubble
disintegrating component in the interior surface or wall (3) of the fluidized
bed reactor to face a reaction space in the fluidized bed reactor, thus
implying the formation of gas bubbles (fluidizing gas bubbles) in the
reaction space of the fluidized bed reactor that would surround jets from
reaction gas nozzles in the reaction space.11 KSR, 550 U.S. at 418; Preda,
401 F. 2d at 826.
Moreover, Appellants’ arguments relating to the particles sizes recited
in claims 18 and 20, the Sauter diameter of distribution (a measure of
particle size uniformity) recited in claim 18, and the spherical shape
(substantially or near spherical to spherical) of product granules recited in 21
are not persuasive for the reasons set forth in the Answer. In particular, as
found by the Examiner at pages 9 and10 of the Answer, Hertlein, like
Weidhaus ‘632, teaches that it was known to employ approximately

11 See also Weidhaus ‘986 which teaches that a fluidized bed is preferably
operates as a bubble forming fluidized bed in forming high-purity
polycrystalline silicon particles. (See ¶¶[0041] and [0043].)
Appeal 2012-007091
Application 12/111,291

13
spherical silicon particles having a diameter of from 200 to 3000 µm in a
fluidized bed reactor to form polycrystalline silicon granules. (See Hertlein,
¶ [0004] and Weidhaus ‘632, col. 1, ll. 18-22 and col. 6, ll. 20-25.)
Consistent with the above teachings, Hertlein also exemplifies employing
approximately spherical silicon granules having an average particle
diameter of 600 µm to produce product granules having an average particle
diameter of 665 µm, thus implying the product granules are approximately
spherical (a spherical particle has a diameter). (See Hertlein, ¶¶ [0052]-
[0054].) Appellants have not disputed the Examiner’s finding that the
employment of spherical silicon particles having the above diameters taught
by Hertlein “would result in a range of possible Sauter diameters of the
distribution that would overlap with” the claimed range of Sauter diameters.
(Compare Ans. 10 with App. Br. 4-17 and Reply Br. 1-5.) Nor have
Appellants disputed the Examiner’s finding that the high-purity
polycrystalline silicon particles (product granules) taught by Hertlein is
approximately spherical. (Compare Ans. 9-10 with App. Br. 4-17 and
Reply Br. 1-5.)
“[W]here the prior art gives reason or motivation to make the claimed
[invention]…the burden (and opportunity) then falls on an applicant to rebut
that prima facie case. Such rebuttal or argument can consist of . . . any other
argument or presentation of evidence that is pertinent.” In re Dillon,
919 F.2d 688, 692-93 (Fed. Cir. 1990) (en banc). Consistent with the above
guidance set forth in Dillon, the burden of demonstrating unexpected results
is placed on the party who asserts them. In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Appeal 2012-007091
Application 12/111,291

14
Appellants’ argument that the showing in the Examples of the
Specification demonstrates that the claimed process imparts unexpected
results is not persuasive. Although Appellants assert that the specific
velocity of a specific fluidizing gas and the specific flow rate of a specific
reactant gas allowed a fluidized bed reactor to operate without shutdown for
672 hours in its Example 1 and criticize the particular exit velocities of
reaction gases or a specific weak fluidizing velocity of a fluidizing gas used
in its Examples 2, 3, and 5, they do not identify any averment in the
Specification or a declaration that the results obtained are in fact unexpected
by one of ordinary skill in the art. See In re Geisler, 116 F.3d 1465, 1471
(Fed. Cir. 1997) (a naked attorney argument is insufficient to establish
unexpected results); In re Skoner, 517 F.2d 947, 948 (CCPA 1975)
(Expected results are evidence of obviousness just as unexpected results are
evidence of unobviousness). Appellants also do not allege, much less show,
that the claimed process impart unexpected results relative to the closest
prior art process, namely the process taught by Hertlein.12 In re Baxter
Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected
results are used as evidence of nonobviousness, the results must be shown to
be unexpected compared with the closest prior art.”) Nor do Appellants
show or explain that the unexpected resulted allegedly achieved with using
the specific fluidizing gas velocity and the specific reacting gas flow rate

12 Using the specific fluidizing gas velocity and the specific flow rate of a
reaction gas, with or without the shielding gas not excluded by the claims on
appeal, Hertlein operated its fluidized bed reactor at least 700 hours without
shutdown and without much wall deposition. (See ¶¶ [0054]-[0061],
Examples 1-16.)
Appeal 2012-007091
Application 12/111,291

15
under particular reaction conditions in Example 1 are applicable to the other
fluidizing gas velocities, reacting gas flow rates, reaction conditions not
tested, but included in the claims on appeal. See, e.g., In re Harris, 409 F.3d
1339, 1344 (Fed. Cir. 2005) (“Even assuming that the results were
unexpected, Harris needed to show results covering the scope of the claimed
range. Alternatively Harris needed to narrow the claims.”); In re Greenfield,
571 F.2d 1185, 1189 (CCPA 1978) (quoting In re Tiffin, 448 F.2d 791, 792
(CCPA 1971)) (“Establishing that one (or a small number of) species gives
unexpected results is inadequate proof, for ‘it is the view of this court that
objective evidence of non-obviousness must be [reasonably] commensurate
in scope with the claims which the evidence is offered to support.’”)
Accordingly, based on the totality of the evidence of record, including
due consideration of Appellants’ arguments and evidence, we find no
reversible error in the Examiner’s determination that the showing in the
Specification is not sufficient to outweigh the evidence of obviousness
reflected in the teachings of Hertlein and Weidhaus ‘632 within the meaning
of 35 U.S.C. § 103(a).
II. Rejection (2)
Appellants contend that one of ordinary skill in the art would not have
been led to appropriately spaced fluidizing gas nozzles, i.e., a distance
greater than 7.5 times of the interior diameter of such nozzles as recited in
claim 12, in fluidizing the silicon seed particles taught or suggested by
Hertlein and Weidhaus ‘632.
Thus, the dispositive question raised here is: Has the Examiner shown
that one of ordinary skill in the art would have been led to appropriately
Appeal 2012-007091
Application 12/111,291

16
spaced fluidizing gas nozzles, i.e., a distance greater than 7.5 times of the
interior diameter of such nozzles as recited in claim 12, for the purpose of
fluidizing the silicon seed particles taught or suggested by Hertlein and
Weidhaus ‘632? On this record, we answer this question in the affirmative.
As is apparent from the record, Appellants do not dispute the
Examiner’s finding that:
Newby is also directed towards granules processed in a
fluidized bed and it teaches that the distance between the
nozzles should be at least twice the interior diameter of the
nozzles, so that the jets remain desirably separate as they
fluidize the bed (col[.] 4, lines 2-7). [(Compare Ans. 11 with
App. Br. 16-18 and Reply Br. 1-5.)

In other words, Newby not only teaches fluidizing gas nozzle spacing
distances, inclusive of those claimed, but also teaches the importance of
spacing distances of such nozzles relative to the sizes of such nozzle
openings in terms of fluidizing or suspending particles.
Thus, notwithstanding Appellants’ arguments to the contrary, one of
ordinary skill in the art interested in improving the fluidization of the silicon
seed particles in Hertlein and Weidhaus ‘632 would have looked to the
teachings of Newby to arrive at the fluidizing gas nozzle spacing distances
recited in claim 12 as indicated by the Examiner.
In reaching this determination, we have carefully considered
Appellants’ argument that Newby is not from the same field of endeavor as
Appellants’ invention and is, therefore, from nonanalogous art. However, as
found by the Examiner, Newby is reasonably pertinent to the particular
problem (fluidizing particles) with which the inventors are involved, for a
Appeal 2012-007091
Application 12/111,291

17
person of ordinary skill in the art interested in improving the fluidization in
of the process suggested by Hertlein and Weidhaus ‘632 would have looked
to the teaching of Newby relating to the fluidization of the particles.
Appellants, like Hertlein, Weidhaus ‘632, and Newby, discuss enhancement
of fluidizing or suspending particles in a fluidized reactor bed. (Spec. 8-9.)
As our reviewing court in In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006)
stated:
The analogous-art test requires that the Board show that a reference is
either in the field of the applicant's endeavor or is reasonably
pertinent to the problem with which the inventor was concerned in
order to rely on that reference as a basis for rejection. References are
selected as being reasonably pertinent to the problem based on the
judgment of a person having ordinary skill in the art. [(Emphasis
added.)]
Accordingly, based on the totality of the evidence of record, including
due consideration of Appellants’ arguments, we find no reversible error in
the Examiner’s determination that the preponderance of evidence weighs
heavily in favor of obviousness of the subject matter recited in claim 12
based on the collective teachings of Hertlein, Weidhaus ‘632, and Newby
within the meaning of 35 U.S.C. § 103(a).
III. Rejection (3)
Appellants do not dispute the Examiner’s finding that Weidhaus ‘986
“is also directed towards…growing polycrystalline granulated silicon in a
fluidized bed reactor [0006] and …further teaches that a suitable residence
time for the reactant gas in the fluidized bed is 0.15 to 1.5 seconds [0040].”
(Compare Ans. 11 with App. Br. 18-19.) Nor do Appellants dispute the
Examiner’s determination that one of ordinary skill in the art would have
Appeal 2012-007091
Application 12/111,291

18
been led to employ such residence time for the reactant gas taught by
Weidhaus ‘986 for the reactant gas used in the high-purity polycrystalline
granulated silicon growing process suggested by Hertlein and Weidhaus
‘632. (Compare Ans. 12 with App. Br. 18-19.)
Rather, Appellants assert that Weidhaus ‘986 “is silent regarding the
residence time in the reaction zone alone.” (App. Br. 19). However, we are
not persuaded by this argument.
As found by the Examiner, Hertlein, Weidhaus ‘632, and Weidhaus
‘986 all teach ejecting a reactant gas into the reaction zone of a fluidized bed
reactor (the reaction zone as recited in the claims on appeal embraces a
location where the reactant gas is fed (above a section where a fluidizing gas
is fed) to the upper outlet for removing the unreacted reactant gas.) (See
Hertlein, ¶[0028] and Fig. 1, Weidhaus ‘632, col. 3, ll. 17-19, and Weidhaus
‘986, ¶[0033].) Hertlein, Weidhaus ‘632, and Weidhaus ‘986 also disclose
removing the unreacted reactant gas with the fluidizing gas from such
reaction zone in the fluidizing bed reactor subsequent to the reaction. (See
Hertlein, ¶ [0030] and Fig. 1, Weidhaus ‘632, col. 3, ll. 26-29 and col. 5, ll.
51-59, and Weidhaus ‘986, ¶¶[0033] and [0034].) Thus, it is reasonable to
infer from the teachings of Weidhaus ‘986 alone or from the collective
teachings of Hertlein, Weidhaus ‘632, and Weidhaus ‘986 that the residence
time for the reactant gas referred to in Weidhaus ‘986 is the residence time
in the reaction zone of the fluidized bed reactor.
Accordingly, based on the totality of the evidence of record, including
due consideration of Appellants’ arguments, we find no reversible error in
the Examiner’s determination that the preponderance of evidence weighs
Appeal 2012-007091
Application 12/111,291

19
heavily in favor of obviousness of the subject matter recited in claim 15
based on the collective teachings of Hertlein, Weidhaus ‘632, and Weidhaus
‘986 within the meaning of 35 U.S.C. § 103(a).
IV. Rejection (4)
We concur with Appellants that Hertlein, Weidhaus ‘632, and Emken
would not have suggested using a particular online exhaust gas analysis
system operated in the manner recited in claim 19 for the reason stated at
pages 19 and 20 of the Appeal Brief. Although the Examiner relies on
Emken for teaching the use of such online exhaust gas analysis system in the
manner recited in claim 19, the Examiner has not demonstrated that Emken,
in fact, teaches such features recited in claim 19. (See Ans. 12-13 and19-
21.) Appellants also do not acknowledge that such system was known at the
time of the invention. (See generally Spec. and App. Br. 19-20.)
Accordingly, on this record, we find that the Examiner has reversibly
erred in determining that the preponderance of evidence weighs heavily in
favor of obviousness of the subject matter recited in claim 19 based on the
collective teachings of Hertlein, Weidhaus ‘632, and Emken within the
meaning of 35 U.S.C. § 103(a).

ORDER
Upon consideration of the record, and for the reasons given above and
in the Answer, it is
ORDERED that the Examiner’s decision rejecting claims 1, 2, 4
through 11, 13, 14, 16 through 18, and 20 through 22 under 35 U.S.C. §
Appeal 2012-007091
Application 12/111,291

20
103(a) as unpatentable over the combined disclosures of Hertlein and
Weidhaus ‘632 is AFFIRMED;
FURTHER ORDERED that the Examiner’s decision rejecting claim
12 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures
of Hertlein, Weidhaus ‘632, and Newby is AFFIRMED;
FURTHER ORDERED that the Examiner’s decision rejecting claim
15 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures
of Hertlein, Weidhaus ‘632, and Weidhaus ‘986 is AFFIRMED;
FURTHER ORDERED that the Examiner’s decision rejecting claim
19 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures
of Hertlein, Weidhaus ‘632, and Emken is REVERSED; and
FURTHER ORDERED that no time period for taking any subsequent
action in connection with this appeal may be extended under 37 C.F.R.
§ 1.136(a) (2010).

AFFIRMED-IN-PART

sld