Appeal No. 2000-009
Application 08/742,426
Appellants submit that the examiner’s rejection cannot stand because the Ford letter and
the attachments do not constitute evidence on which the examiner can rely, and the data in the
attachments do not establish that the St. Gobain and Scorpio glasses have the properties of the
claimed glass. They argue that the Ford letter “is hearsay written by a biased party several years
after the alleged events for the purpose of attempting to escape a claim of infringement,” does not
meet the “clear and convincing standard of evidence” and thus does not meet the requirement
that a rejection can be made only where the evidence establishes that it is “more likely than not
that the claim is unpatentable,” citing MPEP § 706 (brief, pages 4-7; emphasis in the original
deleted). Appellants contend that the evidence does not establish that the “SGV Solar tint rec’d
1/90” is the “same glass that was the subject of the November 1988 invoice” (id., page 4), and,
similarly with respect to the Scorpio glass, that there is no evidence that the “glass for which
compositional and spectral results are allegedly reported is the same glass that was the subject of
the alleged sale in the U.S.” (id., page 6).
Appellants submit that even if the St. Gobain glass is prior art, it does not anticipate the
glass compositions of claims 18-25 or the flat glass of claims 26, 28, 30 and 32. Appellants
contend that the St. Gobain glass does not anticipate “redox ratio of the glass, i.e., the amount of
iron in the ferrous state, expressed as FeO, divided by the total amount of iron, expressed as
Fe2O3, is 0.195, which is outside of the redox range recited in independent claims 18 and 20 of
the instant application of 0.275 to less than 0.35” (id., page 7).
Appellants further contend that the St. Gobain glass, which contains “517 . . . [ppm] of
cerium oxide,” “a well-known UV absorbing material,” is excluded from “independent claims
18, 19, 20 and 23 [which] have a colorant portion consisting essentially of iron” because the
inclusion of this amount of cerium oxide “would significantly change the spectral properties of
the glass” (id., pages 7-8).
Appellants contend that “based on the information provided in Attachments I and J, the
Scorpio glass has a redox ratio of 0.206, which is outside of the redox range recited in claims 18
and 20,” and generally question the calculations used to derive values reported in the Ford letter
(page 3) and the completeness of the analysis reported in the attachments (brief, page 8).
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