metal phase” (Paper 27, p. 10) and “do not specify any architecture for the superconducting
composite . . .” (Paper 27, p. 17).
b. “To provide said superconducting composite with
improved mechanical properties”
Yurek’s specification says that the “superconducting oxide-metal composites exhibit
improved mechanical properties (strength, ductility, etc.) because these properties are dominated by
the metallic phase, rather than by the brittle oxide phase.” Yamada Ex. 1002, col. 2, lines 23-27.
The only other reference to mechanical properties is in Yurek’s Example 2 which states: “The metal
phase, by being intimately mixed with the oxide phase, acts as a ‘skeleton’ in the composite,
resulting in improved ductility and strength.” Yamada Ex. 1002, col. 3, lines 19-22.
In our view “superconducting composite with improved mechanical properties” when read
in light of the written description refers to superconducting composites having a noble metal phase
which acts as a “skeleton” and dominates the mechanical properties of the composite.
c. “Noble Metal”
The phrase noble metal is expressly defined in Yurek’s specification as: “a metallic element
different from the metallic elements of the oxide, e.g., Au, Pt, Pd, or Ag, but may also be an excess
amount (stoichiometrically) of one of the metallic elements of the oxide, e.g., Cu.” Yamada Ex.
1002, col. 2, lines 19-23.
3. Interference-in-fact
As we stated above an interference-in-fact exists if any claim of a party anticipates or renders
obvious a claim of an opponent and vice versa. If the test fails in either direction there is no
interference-in-fact. Yamada argues that the subject matter of Yurek’s claims 1-12 do not anticipate
or render obvious any of Yamada’s claims. In light of our construction of claim 1, we can not agree.
In evaluating interference-in-fact we will compare Yurek’s claim 10 with Yamada’s claim
55. We will start with Yurek’s Claim 10 as presumed prior art. 37 CFR § 1.601(n). Yurek’s Claim
10 depends from Claim 9 which depends from claim 1. These claims are reproduced below:
Yurek Claim 1.
A superconducting composite comprising
a continuous copper containing superconducting oxide phase
in intimate contact with a noble metal phase to provide said
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Last modified: November 3, 2007