Appeal 2007-3048
Application 10/355,018
As correctly pointed out by the Examiner (Answer 4 and 12) and the
Appellants (Br. 6-7), Boire teaches employing a sacrificial metal layer
which is at least partially oxidized . . . to preserve the functional
layer from oxidation . . . The “sacrificial” layer thus oxidizes in
place of the metal of the functional layer.
Provision may therefore be made for the metallic-type
absorbent layer . . . to be placed directly on top of the functional
layer and therefore also to act as a “sacrificial” layer. In this
case, it must be sufficiently thick so that, after it has oxidized
during the deposition of the upper layer, there remains a
sufficient thickness of non-oxidized metal capable of fulfilling
its role as an absorber.
(See also Boire col. 6, l. 66 to col. 7, l. 15). This passage in Boire indicates
that its sacrificial layer contains both fully oxidized and non-oxidized
components (partially oxidized). In other words, both Boire and Macquart
as a whole would have suggested a Ni-Cr alloy sacrificial layer which is
partially oxidized (i.e., having a fully oxidized Ni-Cr alloy component and a
non-oxidized Ni-Cr alloy component). Since the claimed sublayer or layer
in question is not wholly made of a fully oxidized Ni-Cr alloy component
(the term “including” does not preclude the presence of non-oxidized Ni-Cr
alloy components), we concur with the Examiner that both Boire and
Macquart would have suggested the claimed sublayer or layer in question
directly on a functional layer, i.e., a layer containing Ag. See, e.g., MPEP §
2111.03 at 2100-44 (Rev. 5, Aug. 2006) (“The transitional term
‘comprising’, which is synonymous with ‘including,’ ‘containing,’ or
‘characterized by,’ is inclusive or open-ended and does not exclude
additional, unrecited elements or method steps.”)
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