DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claim 46 is objected to because of the following informalities:
Claim 46 uses the word “at” in duplicate.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1 – 6, 33, 37, 41 – 45, 49, & 52 – 54 are rejected under 35 U.S.C. 103 as being unpatentable over Hogan et al. (US 2015/0218042 A1), in view of Johnson (US 2003/0064176 A1).
With regard to claims 1 & 52, Hogan et al. teach a vacuum insulating panel comprising a first glass substrate (2) and a second glass substrate (3); a plurality of spacers (5) provided in a gap between at least the first and second glass substrates, wherein the gap is at pressure less than atmospheric pressure (paragraph [0035] & Fig. 5). An edge seal is provided at least partially between at least the first and second glass substrates (15a, 15b, & 17a) (paragraph [0036] & Fig. 5). No more than two glass substrates are provided in the vacuum insulating panel (Fig. 5).
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Hogan et al. do not explicitly teach the material(s) and/or dimension(s) of the seal are configured so that the vacuum insulating panel has a Condensation Resistance Factor for glass (CRFG) of at least 73.
Johnson teaches insulating glass structures comprising edge seal systems formed of spacers that can contain a desiccant agent for reducing moisture content of the gas or air in the air space of the glass structures near the edge sealing system, thus preventing condensation and enhance the condensation resistance (paragraphs [0010], [0012], & [0021]).
Therefore, based on the teachings of Johnson, it would have been obvious to a person of ordinary skill in the art prior to the effective filing date to adjust the amount of desiccate through routine experimentation in order to achieve the desired resistance to condensation (CRFG). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
With regard to claims 2 – 5 & 53 – 54, as discussed above for claims 1 & 52, It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
With regard to claim 6, Hogan et al. teach the seal comprises a first seal layer (15a) and a second seal layer (17a) (paragraph [0036] & Fig. 5 above).
With regard to claim 33, Hogan et al. teach the seal layers are composed of a primer frit (“primer layer”) comprising bismuth oxide and a sealing frit (“main seal layer”) comprising vanadium oxide (paragraphs [0034] & [0036]).
With regard to claim 37, Hogan et al. teach frits (sealing layers) that are preferably lead-free (paragraphs [0014] & [0071]).
With regard to claims 41 – 42, Hogan et al. teach the first frit (i.e. “the second seal layer”) is fuseable to a glass substrate at a temperature of 550C or higher. In order for a frit to be capable of fusing, the softening point must be reached. The softening point of glass composition is lower than the melting point. Therefore, the melting point of the first frit must be at least 550°C or higher. Furthermore, the second frit (i.e., “the first seal layer”) melts at a temperature of not more than 400°C (paragraph [0092] & Hogan’s claim 1). Therefore, melting point of the first frit is at least 150°C higher than the melting point of the second frit. at a temperature of at least has a melting point Tm at least 100°C higher than a melting point of the first seal layer.
With regard to claim 43, Hogan et al. teach the glass substrates are heat strengthened and/or thermally tempered (paragraphs [0011] – [0012], [0022] – [0023], & [0043]).
With regard to claim 44, Hogan et al. teach the seal is a hermetic edge seal of the vacuum insulating glass (VIG) (i.e., “vacuum insulating panel”) (paragraph [0018]).
With regard to claim 45, Hogan et al. teach the vacuum insulated panel of their invention is for use as a window unit (paragraphs [0016] & [0018]).
With regard to claim 49, Hogan et al. teach the vacuum insulating glass further comprises a low-E coating on at least one of the first and second glass substrates (paragraph [0045]).
Claim(s) 7 – 14, 20 – 21, & 34 are rejected under 35 U.S.C. 103 as being unpatentable over Hogan et al. & Johnson, as applied to claim 6 above, and further in view of Gong et al. (US 2024/0026729 A1).
With regard to claims 7 – 14, Hogan et al. do not teach a second seal layer comprises bismuth oxide and boron oxide.
Gong et al. teach a vacuum insulted glazing unit formed comprising a first pane, a second pane, and a primary sealant along the perimeter for joining the first and second panes (paragraph [0008]). The primary sealant comprises 0 – 55 wt% Bi2O3 (3 – 7.5 mol%), 10 – 65 wt% SiO2 (about 8 – 50 mol%), and 2 – 30 wt% B2O3 (about 17 – 41 mol%) (paragraph [0049]), overlapping Applicant’s claimed range of 1 – 20 mol% Bi2O3, more preferably 1 – 12 mol%, and 20 – 65 mol% B2O3, more preferably from about 40 – 60 mol%, and at least two to three times more boron oxide than bismuth oxide. The primary sealant provides a hermetically sealed intermediate space between the first and second panes, and maintains low-pressure environment therein (paragraph [0007]). Gong does not teach the presence of TiO2 (0%), which is within Applicant’s claimed range of 0 – 20 mol%.
Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date to use the composition of the primary sealant taught by Gong et al. as the primer frit (seal) taught by Hogan et al. for achieving a hermetically sealed intermediate space between the glass substrates that maintains the desired low-pressure environment therein.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d
With regard to claims 20 – 21, Gong do not explicitly teach the primary sealant (i.e., “the second seal layer”) has a bridging oxygen (BO) content of at least about 80%, more preferably at least 85%.
Gong et al. teach the composition of the primary sealant that is substantially identical to Applicant’s second sealing layer composition as claimed. Therefore, one of ordinary skill in the art would expect the primary sealant taught by Gong et al. to inherently comprise a bridging oxygen content of at least 85%.
MPEP 2112 [R-3] states:
The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103. “The inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obviousness.” In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995) (affirmed a 35 U.S.C. 103 rejection based in part on inherent disclosure in one of the references). See also In re Grasselli, 713 F.2d 731, 739, 218 USPQ 769, 775 (Fed. Cir. 1983).
It has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or a substantially identical processes, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitations that stem from the claimed structure. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977).
With regard to claim 34, as shown in Fig. 5 above, Hogan et al. teach the seal further comprises a third seal layer (15b), the first seal layer (17a) being located between at least the second (15a) and third seal layers (15b), and wherein frits 15a and 15b are both composed of a first frit material to serve as a primer for the second frit material 17a (paragraph [0036]). In other words, the thirds seal layer comprises the same composition as the second seal layer. As discussed above, Gong et al. teach a primary sealant (Applicant’s second and third seal layers) comprising bismuth oxide and boron oxide content ranges that overlap with Applicant’s claimed ranges.
Claim(s) 22 – 32 are rejected under 35 U.S.C. 103 as being unpatentable over Hogan et al. & Johnson, as applied to claim 6 above, and further in view of Gödeke et al. (US 2019/0177208 A1).
*Wang (“Tellurite Glass and its applications in lasers”)
With regard to claims 22 – 23, Hogan et al. do not teach a first seal layer (17b) comprising more tellurium oxide (by wt.%) than vanadium oxide.
Gödeke et al. teach a vacuum insulated glass panel comprising glass panes joined by a glass paste (frit/sealant), wherein the paste comprising 40 – 61 wt% TeO2, 9 – 40 wt% V2O5, and 5 – 20 wt% Al2O3 (paragraphs [0047] – [0049]), such the composition comprises more tellurium oxide than vanadium oxide. The sealant composition allows for joining (bonding) at temperatures less than 400°C without the presence of lead (paragraph [0015]).
Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date to use the sealant composition taught by Gödeke et al. as the sealant 17b taught by Hogan et al. for bonding at low temperatures without the presence of lead.
With regard to claims 24 – 27, Gödeke et al. do not explicitly teach the first seal layer contains from about 60 – 90% of Te in the first seal layer is in a form of TeO3, and from about 3 – 35% of Te in the first seal layer is in a form of TeO4, wherein a ratio of TeO4:TeO3 in the first seal layer is from about 0.05 to 0.40.
However, as evidenced by *Wang et al., with increasing temperature, a portion of the TeO4 in the composition is transformed into TeO3 and TeO3+1(pgs. 5 – 7, Fig. 1)
Therefore, when the first sealing layer taught by the combination of Hogan et al. and Gödeke et al. is heated for melting and fusion to the glass panes, one of ordinary skill in the art would expect the seal layer to contain Te in the form of TeO4, TeO3, & TeO3+1. Furthermore, it would have been obvious to a person of ordinary skill in the art prior to the effective filing date to adjust the heating temperature of the first seal layer composition when joining the seal to the glass panes through routine experimentation in order to achieve the desired ratio of TeO4, TeO3, and TeO3+1. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
With regard to claims 28 – 32, Gödeke et al. do not explicitly teach the vanadium oxide of the first sealing layer in the form of VO2, V2O3, and V2O5, and the amount of each.
Similar to the transformation taught by Wang et al., Applicant’s specification pgs. 19 – 20 teaches V2O5 also changes stoichiometry under heating. As such, the sealant comprising V2O5 taught by Gödeke et al. inherently contains a blend of V2O5, V2O3, and VO2, after the heating step for bonding the sealant to the glass panes.
Therefore, it would have been obvious to a person of ordinary skill in the art prior to the effective filing date to adjust the heating temperature of the first seal layer composition when joining the seal to the glass panes through routine experimentation in order to achieve the desired ratio of V2O5, V2O3, & VO2. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Claim(s) 38 – 40 are rejected under 35 U.S.C. 103 as being unpatentable over Hogan et al. & Johnson, as applied to claim 6 above, and further in view of Burt et al. (U.S. Patent No. 7,425,166 B2).
With regard to claims 38 – 40, Hogan et al. and Johanson fail to teach the thicknesses of each of the frit (seal layers).
Burt et al. a vacuum seal glass window comprising edge frits (sealing material), wherein the height (thickness) of a frit allows for a second substrate to be sealed to a first glass substrate. If the frit is too thin it does not leave enough material to absorb laser radiation, resulting in failure and if the frit is too thick it will be able to absorb enough energy at the first surface to melt, but will prevent the necessary energy needed to melt the frit from reaching the frit proximate a second substrate, resulting in poor bonding between the glass substrates (Col. 4, Lines 43 – 63).
Therefore, absent a showing of criticality with respect to thickness (a result effective variable), it would have been obvious to a person of ordinary skill in the art prior to the effective filing date to adjust the thickness of each of the first and second sealing layers taught by Hogan et al. through routine experimentation for achieving sufficient bonding of the two glass substrates. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Claim(s) 50 – 51 are rejected under 35 U.S.C. 103 as being unpatentable over Hogan et al. & Johnson, as applied to claim 1 above, and further in view of Tinianov et al. (US 2010/0139195 A1).
With regard to claims 50 – 51, Hogan et al. and Johnson fail to teach the panel has a center of glass (COG) u-factor of from about 0.24 to 0.38 W/m2K, more preferably about 0.28 to 0.36 W/m2K.
Tinianov et al. teach, for a window model using spacers, the U-factor is a measure of the energy efficiency of the window in terms of thermal transmission or rate of heat transfer through the system. The lower the U-factor, the lower the amount of heat loss. A vacuum insulated glass panel comprising thermally conductive spacer material, such as steel, has a U-factor. A vacuum insulated glass panel comprising thermally insulative material, such as fiber-reinforced aerogel, has a low U-factor (paragraphs [0046] – [0046]).
Therefore, based on the teachings of Tinianov et al., it would have been obvious to a person of ordinary skill in the art prior to the effective filing date to the material of the spacer through routine experimentation in order to achieve the desired U-factor (thermal transmission). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Allowable Subject Matter
Claims 15 – 19, 35 – 36, & 46 – 48 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
With regard to claim 15, as discussed above, Gong et al. teach the primer sealant (i.e., “the second seal layer”) does not contain titanium oxide. Therefore, it would not be obvious to one of ordinary skill in the art to use a primer sealant comprising 3 – 12% titanium oxide. Furthermore, this claim limitation was indicated as allowable in App. No. 18/636,472.
With regard to claims 16 – 18, the references cited above fail to teach a thermal conductivity of the second seal layer is greater than a thermal conductivity of the first seal layer. Furthermore, this claim limitation was indicated as allowable in App. No. 18/636,472.
With regard to claim 19, the references cited above fail to teach the first seal layer has a density of from about 2.8 – 4.0 g/cm3, the second seal layer has a density of from about 3.0 – 4.2 g/cm3, and wherein the density of the second seal layer is at least about 0.20 g/cm3 greater than the density of the first seal layer. Furthermore, this claim limitation was indicated as allowable in App. No. 18/636,472.
With regard to claim 35, the references cited above fail to teach for at least one location of the seal, the first seal layer has a first thickness, the second seal layer has a second thickness, and the third seal layer has a third thickness; and wherein the first thickness is greater than the second thickness and less than the third thickness. Furthermore, this claim limitation was indicated as allowable in App. No. 18/636,472.
With regard to claim 36, the references cited above fail to teach for at least one location of the seal, a width of the first seal layer is less than a width of the second seal layer by at least about 1 mm. Furthermore, this claim limitation was indicated as allowable in App. No. 18/636,472.
With regard to claim 46 – 48, the references cited above fail to teach the seal comprises a first seal layer and a second seal layer, wherein at least one location a ratio Wp/W of second seal width (Wp) to first seal width (W) is from about 1.2 to 2.2. Furthermore, this claim limitation was indicated as allowable in App. No. 18/636,472.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 – 3 & 52 – 54 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 14 – 16 of copending Application No. 18/636,472 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reasons:
With regard to claims 1 – 3 & 52 – 54, ‘472 recites a vacuum insulating panel comprising: a first glass substrate; a second glass substrate; a plurality of spacers provided in a gap between at least the first and second glass substrates, wherein the gap is at pressure less than atmospheric pressure; a seal provided at least partially between at least the first and second glass substrates; wherein no more than two glass substrates are provided in the vacuum insulating panel; wherein the material(s) and/or dimensions(s) of the seal are configured so that the vacuum insulating panel has a Condensation (CRFG) of at least 73 (‘472 claims 1 & 14), of at least 75 (claims 1 & 15), of at least 76 (‘427 claims 1 & 16).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/NICOLE T GUGLIOTTA/Examiner, Art Unit 1781
/ALICIA J WEYDEMEYER/Primary Examiner, Art Unit 1781