WACKER CHEMIE AG

Patent Trials and Appeals Board

Feb 20, 2020

14771421 - (D) (P.T.A.B. Feb. 20, 2020)

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.
14/771,421 08/28/2015 Matthias VIETZ WASN0218PUSA 5837
22045 7590 02/20/2020
Brooks Kushman
1000 Town Center
22nd Floor
Southfield, MI 48075
EXAMINER
HIBBERT-COPELAND, MARY CATHERINE
ART UNIT PAPER NUMBER
3731
NOTIFICATION DATE DELIVERY MODE
02/20/2020 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):
docketing@brookskushman.com
kdilucia@brookskushman.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MATTHIAS VIETZ and
WERNER LAZARUS

Appeal 2019-004785
Application 14/771,421
Technology Center 3700
____________

Before MICHAEL L. HOELTER, LISA M. GUIJT, and
LEE L. STEPINA, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 12–22. 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 “Wacker
Chemie AG.” Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to a method for packing
polysilicon chunks.” Spec. 1:17–18. Method claim 12 is the sole
independent claim, is illustrative of the claims on appeal, and is reproduced
below.
12. A method for packing polysilicon chunks, comprising
providing an amount of polysilicon chunks, taking a multiplicity
of portions from the amount of polysilicon chunks by means of
grabs, shovels, vessels, or manually, and weighing the portions
individually, optionally classifying the portions of polysilicon
chunks by size classes, wherein the portions taken and weighed
are conducted into a buffer store comprising a multitude of buffer
vessels, in such a way that the buffer vessels each contain a
weighed portion of polysilicon chunks, defining a target weight
for the silicon chunks to be packed in a plastic bag, combining
the total of polysilicon chunks contained at least 4 buffer vessels
from the multitude of buffer vessels which have a total weight
closest to the target weight, introducing the polysilicon chunks
of the at least 4 buffer vessels into a plastic bag and closing the
plastic bag, wherein, based on the total weight of the at least 4
portions contained in the buffer vessels, less than 0.5% of fine
material forms, the fine material comprising particles which can
be sieved off by means of a mesh screen having a mesh size of 8
mm (square meshes) from the total amount of chunks of size 20
to 200 mm combined from the at least 4 buffer vessels.
EVIDENCE
Name Reference Date
Zeyer et al. (“Zeyer”) US 6,127,635 Oct. 3, 2000
Flottmann et al.
(“Flottmann”)
US 6,375,011 B1 Apr. 23, 2002
Holzlwimmer et al.
(“Holzlwimmer”)
US 2005/0034430 A1 Feb. 17, 2005
Wochner et al. US 2010/0154357 A1 June 24, 2010
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(“Wochner”)
REJECTIONS
Claims 12–20 are rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Holzlwimmer, Zeyer, and Flottmann.
Claims 21 and 22 are rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Holzlwimmer, Zeyer, Flottmann, and Wochner.2
ANALYSIS
The rejection of claims 12–20
as unpatentable over Holzlwimmer, Zeyer, and Flottmann
Appellant addresses claims 12–20 together, but also presents separate
arguments for each of claims 13 and 17. See Appeal Br. 4–10. We select
claims 12, 13, and 17 for review, with the remaining claims standing or
falling with their respective parent claim. See 37 C.F.R. § 41.37(c)(1)(iv).
Claim Construction
Sole independent claim 12 includes the step of “optionally classifying
the portions of polysilicon chunks by size classes.” We understand that, by
use of the term “optionally,” Appellant intends to recite a claim that reads on
a narrower method that includes the step of the classification of chunks by
size classes, and also a broader method which does not include the step of
such classification by size classes.3

2 The Examiner only lists claim 21 in the heading of this rejection, but the
body of the rejection also addresses claim 22. See Final Act. 6. We thus
understand this omission in the heading as an inadvertent error.
3 See Upsher-Smith Labs., Inc. v. Pamlab, L.L.C., 412 F.3d 1319, 1322 (Fed.
Cir. 2005) (“The European Application’s ‘optional inclusion’ of antioxidants
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Additionally, claim 12 includes the step of “combining the total of
polysilicon chunks contained at least 4 buffer vessels . . . .” We understand
this phrase as meaning, “combining the total of polysilicon chunks contained
[in] at least 4 buffer vessels . . . .” Emphasis added. Our understanding is
supported by Appellant’s Specification. See, e.g., Spec. 9:25–29 (“the
portions are preferably conducted into a buffer store” and “a multitude of
buffer vessels each containing a portion of polysilicon chunks” (emphasis
added)).
Claim 13 recites “wherein the portions of the polysilicon chunks
comprise a plurality of polysilicon chunks or individual polysilicon chunks.”
Appeal Br. (Claims App. 1). We discern no difference between “a plurality”
of chunks and “individual” chunks (and we can glean no assistance from
Appellant’s Specification in this matter). In other words, “individual
polysilicon chunks” means there is more than one chunk of polysilicon,
which is another way of reciting “a plurality of polysilicon chunks.”
Should further prosecution of this application ensue, we recommend
these issues be addressed and clarified, if our construction of the claims
supra is other than intended by Appellant.
Claim 12
The Examiner primarily relies on Holzlwimmer for disclosing many
of the recited limitations, including the packaging of polysilicon chunks.
Final Act. 3; see also Ans. 7 (“Holzlwimmer teaches separating polysilicon
into individual bags”). The Examiner additionally relies on Zeyer for
disclosing multiple buffer vessels, and on Flottman for disclosing the sieving

teaches vitamin supplement compositions that both do and do not contain
antioxidants.”).
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of silicon fragments into different sizes. See Final Act. 3–4. The Examiner
provides reasons for their combinations. See Final Act. 3, 4.
Appellant initially addresses Holzlwimmer and identifies many
limitations (see Appeal Br. 5) that the Examiner either relied on other
references for teaching, or which the Examiner relied on Holzlwimmer in
combination with another for teaching. Hence, Appellant’s arguments
addressing Holzlwimmer individually as not disclosing these recited
limitations is not persuasive of Examiner error.4
Appellant also argues that “‘classifying’ is not discussed in
Holzlwimmer, and weighing chunks in a hopper has absolutely nothing to do
with classifying.” Appeal Br. 5; see also Reply Br. 2, 3. However, the
Examiner also referenced Flottmann as teaching “a flat mesh sieve to
separate silicon fragments” (Final Act. 4) and thereafter states that
Flottmann, alternatively, discloses “separating by size class.” Ans. 7; see
also Flottmann 3:29–32 (discussing classification by grades “depending on
the size of the passage openings” the particles pass through). Accordingly,
Appellant’s focus on Holzlwimmer on this point (and lacking any similar
discussion regarding the teachings of Flottmann), as well as Appellant’s
contentions regarding the optional recitation to size classification (see
above), are not persuasive of Examiner error.
Appellant further states, “Holzlwimmer does not disclose any buffer
vessels whatsoever.” Appeal Br. 6; see also Reply Br. 3. As expressed
above, however, the Examiner additionally relied on Zeyer for teaching

4 Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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multiple vessels, and specifically referenced hoppers W1–W10 disclosed
therein “which are interpreted as buffer vessels.” Final Act. 3; see also Ans.
8, Zeyer Abstract and Figures. Appellant appears to agree with the
Examiner’s assessment of Zeyer’s multiple vessels stating “[a]s far as it
goes, this is correct.” Appeal Br. 6. Regardless, Appellant asserts that the
“multihead weighers such as those of Zeyer are not satisfactory for
packaging polysilicon, since such devices would produce an inordinate
amount of fines.” Reply Br. 3. However, as expressed above, the Examiner
relies on Holzlwimmer for packaging purposes, and on Zeyer for disclosing
the use of multiple buffer vessels during product handling. See Final Act. 3;
Ans. 7, 8. As such, Appellant’s contentions regarding Examiner error due to
a lack of any teaching of multiple buffer vessels are not persuasive.
Regarding the production of “an inordinate amount of fines” (Reply
Br. 3), Appellant explains “that multihead weighers of the kind disclosed by
Zeyer are not suitable for packaging polysilicon, as a large amount of fines
would be produced during the packaging process.” Appeal Br. 6; see also
Reply Br. 3. Appellant, however, seems to understand that “[t]he Examiner
cites Flottmann for this purpose” yet, “Flottmann does not even mention
fines produced during packaging.” Appeal Br. 6, 7; see also Reply Br. 5, 6.
Appellant appears to not fully understand the Examiner’s rejection,
which relies on a combination of references for disclosing the recited
limitations. See Final Act. 3–4. All three references disclose the
conveyance of silicon particles. Holzlwimmer teaches, according to the
Examiner and during conveyance, “multiple fragments being weighted and
bagged” and also “defining a target weight for the silicon chunks (2) to be
packed in a plastic bag (8).” Final Act. 3; see also Holzlwimmer ¶ 39, Ans.
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7. “Zeyer teaches buffering portions of product and combining
combinations of each weighed portion to form a single combined item; col. 1
line 30–col. 2 line 42.” Final Act. 3. Flottmann teaches size classification
during conveyance. See Flottmann generally, Ans. 7. Thus, Flottmann’s
silence regarding any “packaging” of the conveyed and classified particles is
not fatal, as this “packaging” recitation is clearly disclosed by Holzlwimmer
(and Zeyer to some degree).
Appellant further argues, “the deflection plate of Holzlwimmer is
incapable of reducing the amount of fines generated during packaging to the
claimed amount.” Reply Br. 4. However, the Examiner relies on Flottmann
for achieving the recited amount of fines. See Final Act. 4. It is further
noted that Holzlwimmer teaches that “[t]he drop height of the silicon is
minimized by deflection plates 5 adjacent to the hopper, so that undesired
recomminution of the silicon does not take place.” Holzlwimmer ¶ 39.
Appellant also states, “[t]he benefit of the present invention is that no
further sieving process to remove fines is necessary, as virtually no
additional fines are produced during the packaging process.” Appeal Br. 8.
The rejection, however, is not directed to a combination that may require
additional or “further sieving” during packaging. Instead, the Examiner
clearly states that it would have been obvious “to modify the conveyor
channel 1 [of Holzlwimmer] with the sieving as taught by Flottman[n].”
Final Act. 4 (emphasis added). To be clear, Holzlwimmer’s conveyor
channel 1 is depicted upstream the packaging operation. See Holzlwimmer
Fig. 1. The Examiner further states, “the sieving process of Flottmann as
part of the packing process reduces the amount of fine material formation in
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the final bag.” Ans. 10. Thus the Examiner is incorporating Flottmann’s
sieving process into Holzlwimmer’s conveyance and packaging operation.
Appellant additionally argues “the Office has employed Appellant’s
own claims and Specification as a template” and “[t]he Office has given no
reason why” a skilled person would combine Zeyer with Holzlwimmer.
Reply Br. 4. However, neither of these contentions are persuasive in view of
the discussion above.
Accordingly, and based on the record presented, we are not persuaded
of Examiner error. We sustain the Examiner’s rejection of claim 12, and
dependent claims 14, 16, and 18–20, as being unpatentable over
Holzlwimmer, Zeyer, and Flottmann.
Claim 13
As best we understand claim 13 (see above), this claim recites a
multitude of individual polysilicon chunks. Appellant states, “Appellant is
unable to find any such disclosure” in Holzlwimmer and, as support,
Appellant replicates Holzlwimmer Paragraph 38 which references “FIG. 1”
therein. Appeal Br. 9. To be clear, Figure 1 of Holzlwimmer illustrates a
multiplicity of individual items identified as reference numeral 2, which are
described as “polysilicon fragments 2.” Holzlwimmer ¶ 23. The Examiner
states, “Holzlwimmer discloses polysilicon fragments 2, this is interpreted as
at least several polysilicon chunks.” Ans. 10. Appellant, however,
contends, “[a]s can be seen, the disclosure to which the Examiner refers does
not exist.” Appeal Br. 10.
Appellant’s contention that the disclosure of a multitude of chunks is
not disclosed, or does not exist, and that “Appellant is unable to find any
such disclosure,” is not persuasive in view of the teachings of Holzlwimmer
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above. Appeal Br. 9. Accordingly, we sustain the Examiner’s rejection of
claim 13, and claim 15 which depends therefrom, as being obvious over
Holzlwimmer, Zeyer, and Flottmann.
Claim 17
Claim 17 depends from claim 12 and additionally recites a conveying
stream that “is controlled by a result from the weighing or classifying unit.”5
Appeal Br. (Claims App. 2). Appellant contends from a review of Paragraph
39 of Holzlwimmer (cited by the Examiner) that “[t]here is no disclosure of
controlling a conveying stream whatsoever.” Appeal Br. 10. Appellant’s
contention is not well founded. Paragraph 39 of Holzlwimmer states, “[t]he
weighting device [3] controls the filling level of a hopper 4 with polysilicon
fragments 2.” See also Ans. 11 (the “cited conveyor 1 conveys a stream of
polysilicon chunks 2 into the weighing hopper 4”). Hence, contrary to
Appellant’s assertion, Holzlwimmer discloses a conveying stream (see
Holzlwimmer Fig. 1) that is controlled by weighting device 3. In view of
this, we are not persuaded of Examiner error. We sustain the Examiner’s
rejection of claim 17 as being obvious over Holzlwimmer, Zeyer, and
Flottmann.
In summation, we sustain the Examiner’s rejection of claims 12–20 in
view of Holzlwimmer, Zeyer, and Flottmann.
The rejection of claims 21 and 22
as unpatentable over Holzlwimmer, Zeyer, Flottmann, and Wochner

5 Parent claim 12 recites the step of “weighing” and “optionally classifying,”
but there is no antecedent basis for “the weighting or classifying unit”
recited in dependent claim 17.
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Appellant’s sole contention regarding the rejection of claim 21 is that
none of cited references, either alone or in combination, “teach or suggest
the subject matter of claim 12,” from which claim 21 depends. Appeal Br.
10. In view of our analysis above regarding claim 12, this contention is not
persuasive of Examiner error. We sustain the Examiner’s rejection of claim
21 as being obvious over Holzlwimmer, Zeyer, Flottmann, and Wochner.
Claim 22 recites, “wherein the deviation of the weight of polysilicon
chunks in the plastic bag is within ± 1 weight percent relative to the target
weight.” Appeal Br. (Claims App. 2). The Examiner relies on Wochner for
teaching the recited weight tolerance range. See Final Act. 6 (referencing
Wochner ¶ 3). Appellant, after replicating Paragraph 3 of Wochner, states,
“this paragraph merely states the industry accepted tolerance” (which we
note is within the recited range). Appeal Br. 11. Appellant continues,
“Wochner does not say how such a tolerance can be achieved” and that “no
previously known packaging method could achieve this tolerance without
manual intervention.” 6 Appeal Br. 11.
Paragraph 3 of Wochner states that polysilicon material “usually has
to be packaged” and “is usually supplied in bags” that meet industry
standards, and also provides examples of same (which we note are equal to
or less than the recited range). Thus, Wochner discloses that it is known to
meet such standards, and Appellant provides no technical reason as to why
Wochner’s disclosure is not enabled on this point. Hence, Appellant does
not explain how, in view of Wochner’s disclosure, it would not have been
obvious to supply polysilicon in accordance with industry standards. In

6 The Examiner notes, “the recited claim does not say how the recited
tolerance is achieved either.” Ans. 11.
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other words, Appellant does not explain how the limitation, “wherein the
deviation of the weight of polysilicon chunks in the plastic bag is within ± 1
weight percent relative to the target weight” would not have been obvious in
view of Wochner. We sustain the Examiner’s rejection of claim 22 as being
obvious over Holzlwimmer, Zeyer, Flottmann, and Wochner.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
12–20 103(a) Holzlwimmer,
Zeyer, Flottmann
12–20
21, 22 103(a) Holzlwimmer,
Zeyer, Flottmann,
Wochner
21, 22
Overall
Outcome
12–22
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED