Ex Parte 7097719 et al

Patent Trial and Appeal Board

Dec 29, 2016

95000285 (P.T.A.B. Dec. 29, 2016)

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.
07-1747 9522
EXAMINER
JOHNSON, JERRY D
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
95/000,285 09/21/2007 7097719
12/29/20168840 7590
ARCONIC INC.
C/O GREENBERG TRAURIG, LLP
500 CAMPUS DRIVE
SUITE 400
FLORHAM PARK, NJ 07932
12/29/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
KAISER ALUMINUM & CHEMICAL CORP., and
CON STELLIUM FRANCE1
Requesters
v.
Patent of ALCOA, INC.
Patent Owner and Appellant
Appeal 2016-008385
Reexamination Control Nos. 95/000,285 & 95/001,085
Patent 7,097,719
Technology Center 3900
Before ROMULO H. DELMENDO, RICHARD M. LEBOVITZ, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION UNDER 37 C.F.R. § 41.77(f)
1 Formerly Alcan Rhenalu. (See Respondent Brief of Requester II,
Constellium France, filed September 14, 2012, 1.)
Appeal 2016-008385
Reexamination Control 95/000,285 & 95/001,085
Patent 7,097,719
This is a decision under 37 C.F.R. § 41.77(f). In the decision mailed
October 9, 2015 (Appeal No. 2014-008138, “Decision on Appeal on
Appeal” or “DOA”), we set forth the following new grounds of rejection
pursuant to 37 C.F.R. § 41.77(b):
Claims 1-6 and 8 under 35 U.S.C. § 112, second paragraph, because,
contrary to the Examiner’s position, one of ordinary skill in the art would
not be able to determine whether an alloy product would meet the average
fatigue failure resistance recited in claims 1 and 3 (DOA 17-19, 21); and
Claims 1-6 and 8 under 35 U.S.C. § 112, first paragraph as lacking
written description as found by the Examiner, but denominated as a new
ground of rejection because the rationale in the Decision on Appeal differed
from the Examiner’s rationale. (DOA, 14-17.)
Also in the Decision on Appeal, we affirmed the Examiner’s rejection
of claims 1-6 and 8 under 35 U.S.C. § 112, first paragraph as lacking
enablement. (DOA, 7-14, 20.) As a result of the new ground of rejection
under 35 U.S.C. § 112, second paragraph, we reversed pro forma, the prior
art rejections of claims 1-6 and 8. (DOA 20-21.) We also summarily
affirmed the Examiner’s rejection of claim 14 over prior art because the
rejection was no longer being contested. (DOA 2, FN4, 20.)
In response to the Decision on Appeal, Patent Owner exercised its
option under 37 C.F.R. § 41.77(b)(1) to file a request to reopen prosecution,
proposing amendments to independent claims 1 and 3, and dependent claims
5, 6, and 8 subject to the new ground of rejection, and cancelling claim 14.
(Patent Owner’s Amendment and Response, and Request to Reopen
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Prosecution Under 37 C.F.R. § 41.77, filed October 22, 2015, hereinafter
“PO 41.77(b)(1) Resp.” or “Request to Reopen”.)
Third Party Requester Constellium France (Requester II) filed
“COMMENTS OF REQUESTER II” on November 18, 2015 (hereinafter
“Requester II’s Comments” or “Req. Comm.”) under 37 C.F.R. § 41.77(c) in
response to the Patent Owner's Request to Reopen.2
An order granting Patent Owner’s request to reopen and remand the
inter partes reexamination to the Examiner was issued. (“ORDER
REMANDING INTER PARTES REEXAMINATION UNDER 37 C.F.R.
§ 41.77(d) to the EXAMINER”, hereinafter “Remand Order” mailed January
11,2016.)
An Examiner’s Determination under 37 C.F.R. § 41.77(d) was issued
on March 3, 2016. (Hereinafter, “Ex. Det.”) In the Examiner’s
Determination, the Examiner determined that the rejection under 35 U.S.C.
§112, second paragraph has been overcome with respect to claims 3 and 4,
because the claims have been amended to no longer require a fatigue failure
resistance value, but that the amendment to claim 1 was insufficient to
overcome the rejection of claims 1, 2, 5, 6, and 8. (Ex. Det. 6-8.) Despite
indicating that the rejection under 35 U.S.C. § 112, second paragraph had
been overcome, the Examiner did not comment on the status of claims 3 and
4 as amended with respect to the prior art. (See generally Ex. Det.)
The Examiner also determined that the rejection of claims 3 and 4
under 35 U.S.C. § 112, first paragraph as lacking written description had
2 Requester I, Kaiser Aluminum & Chemical Corp. did not file any papers
under 37 C.F.R. § 41.77(c) or (e).
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been overcome, but that the amendment to claim 1 was insufficient to
overcome the rejection of claims 1, 2, 5, 6, and 8 for lack of written
description. (Ex. Det. 5-6.)
Both Patent Owner and Requester II filed responses to the Examiner’s
Determination on April 1, 2016. (Comments on Examiner’s 41.77(d)
Determination Under 37 C.F.R. § 41.77(e); Comments of Requester II
Under 37 CFR 41.77(e).) In addition, both Patent Owner and Requester II
filed responses to each other’s response to the Examiner’s Determination.
(Response to Comments of Requester II Under 37 C.F.R. § 41.77(e) filed
April 29, 2016; Reply of Requester II To Patent Owner’s Comments filed
May 2, 2016.)
Requester II’s response to the Examiner’s Determination was entered,
but all other papers under 37 C.F.R. § 41.77(e) filed by Patent Owner and
Requester were denied entry. (See Miscellaneous Communication to
Applicant mailed July 28, 2016; Decision on Petition Under 37 C.F.R.
§ 1.181 mailed November 3, 2016.)
Accordingly, out of all the responses filed under 37 C.F.R. § 41.77(e),
only the Comments of Requester II Under 37 CFR 41.77(e) (“Req. II
41.77(e) Comments”) have been considered in rendering this decision.
Pursuant to37C.F.R. §41.77(f), this decision is deemed to
incorporate our earlier decisions, except as indicated herein.
CFAIM AMENDMENTS
Independent claims 1 and 3, as amended with Patent Owner’s Request
to Reopen, are reproduced below (with underlining showing additions to the
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Patent 7,097,719
claims, bracketing showing deletions to the claims relative to the originally
issued claims, and relevant changes reflecting the current amendment
relative to previous amendments shown in bold font and double bracketing)
1. An improved aluminum alloy product having
improved fatigue failure resistance, the aluminum alloy product
consisting essentially of I about, I by weight, 7.6 to [about]
8.4% zinc, [about] 2.0 to [about] 2.5% copper, [about] 1.8 to
[about] 2.3% magnesium, [about] 0.088 to [about] 0.25%
zirconium, the balance to 100 weight % [substantially]
aluminum and incidental elements and impurities, the
improvement comprising maintaining the weight percents of
iron and silicon to [about] 0.01 to not greater than 0.039
110.04411 [[[about]] 0.09%]3 iron, and [about] 0.01 to not
greater than 0.029% [[[about]] 0.06%] silicon;
wherein the aluminum alloy product contains from
7.83 to 8.08% zinc:
wherein the aluminum alloy product contains from
2.10 to 2.17% copper;
wherein the aluminum alloy product contains from
1.88 to 1.93% magnesium;
wherein the aluminum alloy product contains from
0.11 to 0.13% zirconium;
wherein the aluminum alloy product is absent of
magnesium silicide (Mg2Si) intermetallic particles;
wherein the improved fatigue failure resistance is that the
aluminum alloy product achieves a log average fatigue life of at
least llaboutll 355485 cycles, wherein the log average fatigue
life is calculated based on at least 16 specimens from at least
4 lots, wherein each specimen is tested at a net section stress of
207 MPa using a Kt=2.5 open hole specimen having a length of
230 mm, a width of 25.4 mm, a thickness of 3.17 mm and two
3 As a formal matter, we observe that Patent Owner appears to have
inadvertently deleted the “%” from the iron content.
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holes of 4.75 mm diameter spaced 25.4 mm apart, tested in
ambient laboratory air, at a stress ratio of R=0.1 and a
frequency of 25 Hz.
3. An improved AA 7XXX series aluminum alloy
product suitable for aerospace applications having improved
fatigue failure resistance [, said alloy comprising about, by
weight, 7.6 to about 8.4% zinc, about 2.0 to about 2.6%
copper, about 1.8 to about 2.3% magnesium, about 0.088 to
about 0.25% Zr the balance to weight % substantially
aluminum and incidental elements and impurities], the
improvement comprising lowering the amount of Fe to [about]
0.01 to [[[about]] 0.09%10.039 [[0.04411 wt. %, and the amount
of Si to [about] 0.01 to [[[about]] 0.06%10.029% wt. % in an
AA 7XXX series aluminum alloy product consisting
essentially of, by weight from 7.83 to 8.08% zinc, from 2.10
to 2.17% copper, from 1.88 to 1.93% magnesium, from 0.11
to 0.13% zirconium, the balance to 100 weight % aluminum
and incidental elements and impurities, wherein the AA
7XXX series aluminum alloy product is absent of
magnesium silicide (Mg2Si) intermetallic particles
[[wherein the improved fatigue failure resistance is
that the AA 7XXX series alloy product achieves an average
fatigue life of at least about 355485 cycles, based on the log
average, at a net section stress of 207 MPa, wherein the
fatigue life is measured using a Kt=2.5 open hole specimen
having a width of 25.4 mm. a thickness of 3.17 mm and two
holes of 4.75 mm diameter spaced 25.4 mm apart, tested in
ambient laboratory air, at a stress ratio of R=0.1 and a
frequency of 25 Hzll.
(See PO 41.77(b)(1) Resp. 2-3.)
To summarize the amendments, Patent Owner asserts that claim 1 has
been amended to correspond to the invention alloy in claim 1. (PO
41.77(b)(1) Resp. 4.) In this regard, the word “about” has been eliminated
from the ranges of elements set forth in claim 1. Specific ranges of zinc,
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copper, magnesium, and zirconium have been added. The “wherein” clause
related to improved fatigue failure resistance has been amended by adding
the recitation that the “log average fatigue life is calculated based on at least
16 specimens from at least 4 lots.” Patent Owner points to columns 5-6,
Table II, column 6, lines 19-24, and Figure 1 of the ’719 Patent for support
for these limitations. (PO 41.77(b)(1) Resp. 8-10.)
For claim 3, as in claim 1, specific ranges for the elements of the alloy
product have been added, and importantly, the “wherein” clause related to
fatigue failure resistance has been deleted. (PO 41.77(b)(1) Resp. 6, 10-11.)
Absence of Magnesium Silicide (Mg2Si) intermetallic particles
In addition to the above discussed amendments, both claims 1 and 3
have been amended to recite that the “aluminum alloy product is absent of
magnesium silicide (Mg2Si) intermetallic particles.” Patent Owner points to
column 3, lines 27-50 of the ’719 Patent as providing support for this
limitation. (PO 41.77(b)(1) Resp. 7.)
Requester contends that the ’719 Patent does not enable this limitation
because the ’719 Patent discloses that the Mg2Si particles are “absent” or
“almost absent” and does not teach one of ordinary skill in the art how to
fabricate an alloy where the Mg2Si intermetallic particles are “totally”
absent. (Req. Comm. 7-8.)
The Examiner did not comment on this limitation in the Examiner’s
Determination. (See generally Ex. Det.)
The ’719 Patent discloses:
The inventors have discovered that an improvement in the
invention alloy fatigue failure resistance is associated with
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Patent 7,097,719
decreasing fatigue initiation by Mg2Si intermetallic particles.
When the Si concentration is maintained below about 0.06%,
particularly below about 0.04%, the usually observed Mg2Si in
this alloy system is absent or almost absent, thereby
significantly delaying the onset of fatigue failure.
(Col. 3,11. 32-38.)
We observe that claims 1 and 3 as amended in Patent Owner’s
Request to reopen recite at most 0.029% by weight silicon, which is below
0.06% and 0.04% disclosed in the ’719 Patent. The cited portion of the ’719
Patent discloses that lower amounts of silicon lead to the absence of Mg2Si
intermetallic particles. Because the range of silicon recited in the claims
includes an upper limit below that disclosed in the ’719 Patent as providing
for the absence of Mg2Si intermetallic particles, we are not convinced that
undue experimentation would have been required to produce an alloy
product absent of Mg2Si intermetallic particles as recited in the claims. In re
Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). Rather, it appears that alloys
having amounts of silicon recited in the amended claims would inherently be
absent of Mg2Si intermetallic particles.
35 U.S.C. § 112, 2ndparagraph Rejection
Claims 1, 2, 5, 6, and 8
As an initial matter, we disagree with Patent Owner that as a result of
the amendments made to Claim 1, the composition of the alloy recited
therein is limited to that of Example 1 (Lots A-D) in the ’719 Patent.
Specifically, claim 1 as amended in Patent Owner’s Request to Reopen
recites “0.01 to not greater than 0.039[%] iron,” whereas according to Table
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II of the ’719 Patent, the percentage of iron ranges from 0.030 to 0.039 % by
weight. (Col. 5,11. 25-43.) Thus, the percentage of iron in the claims may
be lower than the percentage of iron in the alloy product of Example 1.
Likewise, amended claim 1 recites “0.01 to not greater than 0.029% silicon,”
whereas according to Table II of the ’719 Patent, the percentage of silicon
ranges from 0.014 to 0.029 % by weight. (Col. 5,11. 25-43.)
Regarding the “wherein” clause of claim 1, which recites specific
requirements for the fatigue failure resistance, we stated: “one skilled in the
relevant art would have been unable to ascertain whether an alloy satisfying
the compositional requirements of claim 1 but having a fatigue life below
the specified 355485 cycles would infringe or anticipate claim 1” due to “the
uncertainty in the number and make up of alloys required to obtain the
average fatigue failure resistance recited in the claims, [such that] the claims
do not set forth with reasonable precision, a particular area as required in
order to satisfy 35 U.S.C. § 112, 2nd paragraph.” (DOA 19.)
Although disagreeing with the rejection, Patent Owner contends that
“independent claim 1 has nonetheless been amended to require that the log
average fatigue life is calculated based on at least 16 specimens from at least
4 lots, which is exactly how the log average fatigue life of Example 1 was
tested.” (PO 41.77(b)(1) Resp. 5.) Patent Owner contends that as a result of
claim 1 now specifying a minimum number of lots and specimens required
to be tested to determine the log average fatigue life, the rejection has been
overcome. (PO 41.77(b)(1) Resp. 5-6.)
Requester II contends that claim 1 remains indefinite after the
amendment because the specimens and lots recited in claim 1 are not related
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to the remainder of the claim. (Req. Comm. 2-3.) In addition, Requester II
argues that the portions of the ’719 Patent Specification related to the
“wherein” clause does not disclose how to determine which lots need to be
tested in order to meet the log average fatigue life recited in the claims.
(Req. Comm. 3-5.) Accordingly, Requester II argues that the reasoning
from the Decision on Appeal still applies, because depending on which
specimens from Lots A-D disclosed in the ’719 Patent are selected, a log
average fatigue life below 355485 would be obtained. (Req. Comm. 3-6.)
The Examiner agreed with Requester II. (Ex. Det. 7.) The Examiner
further explained that should more specimens be tested from Lots having
lower Lot log average failure lifes, the log average of all Lots would be
expected to be less than the log average fatigue life of 355485 cycles recited
in claim 1. (Ex. Det. 7-8.)
We agree with the Examiner and Requester II. For convenience, we
reproduce Findings of Fact 4 and 5 from the Decision on Appeal pages 9-10:
4. Dr. Bray provides a table of the Log Average Fatigue Life of
the alloys produced in Lots A-D:
'Log Average Fatigue Life of Inventive Alloys
Net stress
(MPa)
Invention
Lot A
Pe:i: 0.030
SL 0.020
Invention
Lot B
Fc::: 0.032
Si™ 0.019
Invention
Lot C
re::: 0.037
0.014
invention
Lot D
Fe::: 0.039
Si- 0.029
Invention
Lot YYY
Fc::: 0.059
Si~ 0.036
190 563654 974598 427041 611593
207 326521 360157 510033 7(15927 148110
224 51371 85183 5.1972
5I
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(Bray 2009 Declaration,4 p. 11, para. 27.)
5. Dr. Bray provides a table of a summary of open-hole S-N
fatigue life and Log Average Fatigue Life of the alloys
produced in Lots A-H:
Invention
Lot A
Invention
Lot B
Invention
Lot C
Invention
Lot D
Std. 7055
Lot E
Std. 7055
Lot F
m, 7055
Lot G
Std. 7055
Lot H
Fe-0.030 Fe::: 0.032 Fe::: 0,037 Fe::: 0.039 Fe 0.110 Fe- (MOO Fe- 0.110 IF 0,100
Sr 0.020 Si= 0.019 Si 0.014 Si= 0,029 Si- 0,082 Si= 0.073 Si- 0.076 Si 0,072
676466 585702 639217 147774 47984 134282 44966 34400
190323 461080 SI8046 286952 64299 64772 38200 35300
8965J9 212298 480678 51763 38985 49429 4 IKK)
479114 323907 428140 59418 36601 39400
. 395540 49383 38399 43700
5S404
Log Average
326521 369152 510933 205922 54255 63034 41242 38622
(Bray 2009 Declaration, p. 8, para. 18.)
The positions provided by Requester II and the Examiner illustrate
that the “wherein” clause in claim 1 as amended in Patent Owner’s Request
to Reopen is, like the compositional requirements of the alloy, not limited to
the results disclosed in Example 1 of the ’719 Patent. Specifically, by
reciting that the log average fatigue life is “at least” 355485 cycles,
4 The Decision on Appeal erroneously referenced a Rule 132 Declaration by
Dr. Gary H. Bray executed on March 19, 2008, instead of the Rule 132
Declaration by Dr. Gary H. Bray executed on October 20, 2009 submitted
with the response of October 23, 2009. (DOA 5, 9-10.) While the material
is the same, we have corrected the paragraph numbering and the images
produced.
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calculated based on “at least” 16 specimens from “at least” 4 lots, the claim,
while including Example 1 (e.g., at col. 6,11. 21-24, Fig. 1), is not limited
thereto. The claim encompasses potentially higher log average fatigue life,
calculated from potentially more than 16 specimens from more than 4 lots.
The ’719 Patent does not provide any particular direction on how to select
the number of specimens and lots to achieve the results recited in the claim
beyond the specific data reported in Example 1. As a result, and as noted by
Requester II, the same problem exists with respect to claim 1 as now
currently amended as existed in the prior amended version discussed in the
Decision on Appeal.
In addition, we agree with the Examiner that the “wherein” clause
does not identify how to select lots or the number of samples from each lot
in order to satisfy the 16 specimens from more than 4 lots recitation. That is,
according to the Bray 2009 Declaration (FF4, FF5), the log average fatigue
life reported in Example 1 results specifically from the particular number of
samples at each specific element concentration of each lot tested. However,
claim 1 does not tie the number of specimens to the specific lot tested or the
specific elemental composition of the alloy of the specific lot tested.
Moreover, we have not been directed to any enlightenment in the
Specification on a set standard for determining the make-up (i.e.,
identification) of the alloys to be tested, including—but not necessarily
limited to—relevant identifying factors such as individual lot sizes, how a
lot is selected from a given batch of alloy material, individual specimen
sizes, or how specimens are to be selected from a given lot. Without a
standard for selecting the lots and specimens and their sizes from a given
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unspecified batch of alloy material, the fatigue test values recited in the
claim would appear to be meaningless.
Thus, one skilled in the relevant art still would have been unable to
ascertain whether an alloy satisfying the compositional requirements of
claim 1 would meet the log average fatigue life recited therein, because the
amount of iron and silicon is not limited to the range disclosed in Example 1
and the lack of direction in the ’719 Patent as to the number and make-up of
the specimens and lots of alloys required to obtain the average fatigue failure
resistance recited in the claims. Accordingly, claim 1 as amended in Patent
Owner’s Request to Reopen does not set forth with reasonable precision, a
particular area as required in order to satisfy 35 U.S.C. § 112, 2nd paragraph.
In re Moore, 439 F.2d 1232, 1235 (CCPA 1971); In re Packard, 751 F.3d
1307, 1313 (Fed. Cir. 2014) {Reh’g Denied).
For claims 2, 5, 6, and 8, because those claims depend either directly
or indirectly from claim 1, they also do not satisfy 35 U.S.C. § 112, 2nd
paragraph for the same reasons.
Claims 3 and 4
Patent Owner amended claim 3, deleting limitations relating to the
average fatigue failure resistance that were added previously during
reexamination. As a result, the Examiner determined that the rejection of
claims 3 and 4 under 35 U.S.C. § 112, 2nd paragraph had been overcome.
(Ex. Det. 6.) Requester II agrees. (Req. II 41.77(e) Comments 2.)
We agree with the Examiner’s Determination. The “wherein” clause
has been deleted from claim 3, which has been further amended to recite
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narrower ranges for certain, but not all, of the compositional components of
the alloy product from Example 1 of the ’719 Patent. Specifically, the
percentages of iron and silicon of the alloy product recited in claim 3 are not
limited to those of Example 1 of the ’719 Patent according to Table II.
Accordingly, while claims 3 and 4 no longer stand rejected under 35 U.S.C.
§112, second paragraph, they are not limited to the alloy products of
Example 1.
35 U.S.C. § 112, 1stparagraph Written Description Rejection
Claims 1, 2, 5, 6, and 8
Patent Owner contends that in response to the Decision on Appeal,
claim 1 has been amended:
to correspond to the invention alloy compositions recited
in Example 1 of the ‘719 patent. Since claim 1 now
corresponds to the actual invention alloy compositions of
Example 1 resulting in the claimed fatigue life, it is believed
that the written description rejection under 35 U.S.C. § 112 has
been overcome.
(PO 41.77(b)(1) Resp. 4-5.)
Requester contends that even after the amendment, the lower ends of
the recited ranges of iron and silicon extend beyond the amounts used to
generate Lots A-D of Table II, and as such, the claims lack written
description support. (Req. Comm. 8.)
The Examiner stated:
claim 1 is now limited to the invention alloy compositions of
claim 1 which resulted in the claimed fatigue life, however, one
of ordinary skill in the art, in view of the ‘719 patent, still
would not have been reasonably certain that Patent Owner had
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invented an alloy product having the amounts of iron, silicon,
and other elements, and the specifically claimed fatigue failure
resistance value for the full scope of the claims.
(Ex. Det. 5.)
The Examiner further explained that one of ordinary skill in the art
would have reasonably expected that the claimed value is representative
only of the specific examples selected in the manner disclosed in Example 1
(as evidenced by the 2009 Bray Declaration). (Ex. Det. 5-6.)
Both Patent Owner and Requester point to the Decision on Appeal,
where we stated: “Importantly, the claims recite amounts of iron and silicon
that extend beyond the specific amounts used to generate the experimental
results and the average fatigue failure resistance recited in the claims.” (PO
41.77(b)(1) 4; Resp. Req. Comm. 7; Decision on Appeal 16.)
As discussed above, claim 1 has not been limited to Example 1, either
in the amounts of iron and silicon as well as in the calculation of log average
fatigue life. Thus, we disagree with the Examiner’s position that claim 1 has
been limited to claim 1. Asa result, the reasoning in the Decision on Appeal
still applies (DOA 15-17), and the rejection of claims 1, 2, 5, 6, and 8 has
not been overcome because Patent Owner has not identified written
description support for the full ranges recited in the claims.
Claims 3 and 4
As discussed above, Patent Owner amended claim 3, deleting
limitations relating to the average fatigue failure resistance that were added
previously during reexamination. As a result, the Examiner determined that
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the rejection of claims 3 and 4 under 35 U.S.C. § 112, 1st paragraph as
lacking written description had been overcome. (Ex. Det. 5.)
We agree with the Examiner’s Determination. The “wherein” clause
has been deleted from claim 3, which has been further amended to recite
narrower ranges for certain compositional components of the alloy product
from Example 1 of the ’719 Patent. Accordingly, claims 3 and 4 no longer
stand rejected under 35 U.S.C. § 112, first paragraph as lacking written
description.
35 U.S.C. §112 Rejection for Lacking Enablement
Although the rejection under 35 U.S.C. § 112, first paragraph of
claims 1 -6 and 8 as lacking enablement was not designated as new ground of
rejection in the Decision on Appeal, because independent claims 1 and 3
have been amended, we address the continued applicability of this rejection
to the claims as discussed further below.
Claims 1, 2, 5, 6, and 8
Patent Owner contends, similar to the rejection under 35 U.S.C. § 112,
first paragraph for lack of written description, that because claim 1 has been
amended to the actual alloy compositions of Example 1 resulting in the
claimed fatigue life, that the enablement rejection has been overcome. (PO
41.77(b)(1) 4.)
Requester contends that even with the amendments to claim 1, the
rationale from the Decision on Appeal still applies and also that the amounts
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of iron and silicon are not limited to the amounts in Example 1 of the ’719
Patent. (Req. Comm. 6-7.)
In the Examiner’s Determination, the Examiner did not comment on
the effect of the amended claim language on the rejection under 35 U.S.C.
§112, first paragraph of claims 1-6 and 8 as lacking enablement. (See
generally Ex. Det.)
As discussed above, claim 1 has not been limited to Example 1, both
in the amounts of iron and silicon as well as in the calculation of log average
fatigue life. Thus, we disagree with the Patent Owner’s position that claim 1
has been limited to claim 1. As a result, the reasoning in the Decision on
Appeal still applies (DOA 11-14), and the rejection of claims 1, 2, 5, 6, and
8 has not been overcome.
Claims 3 and 4
As discussed above, Patent Owner amended claim 3, deleting
limitations relating to the average fatigue failure resistance that were added
previously during reexamination. As also discussed above, claim 3 has been
further amended to recite narrower ranges for certain compositional
components of the alloy product from Example 1 of the ’719 Patent.
Accordingly, claims 3 and 4 no longer stand rejected under 35 U.S.C. § 112,
first paragraph as lacking enablement.
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Prior Art Rejections
Claims 1, 2, 5, 6, and 8
Because claims 1, 2, 5, 6, and 8 as amended in Patent Owner’s
Request to Reopen do not overcome the rejection in the Decision on Appeal
under 35 U.S.C. § 112, 2nd paragraph, we decline to reach the prior art
rejections of those claims for the reasons set forth in the Decision on Appeal.
(DOA 20.)
Claims 3 and 4
Because the rejection under 35 U.S.C. § 112, 2nd paragraph has been
overcome with respect to claims 3 and 4, we review claims 3 and 4 with
respect the prior art rejections previously applied to those claims, and which
Requester contends still apply to the amended claims.5 (Req. Comm. 10-12,
14-17.)
5 Requester appears to acknowledge that the rejection of claims 3 and 4
under 35 U.S.C. § 102(b) as anticipated by Yamamoto, S., et al.,
Quantitative Estimation Method of Exfoliation Corrosion of High Strength
Aluminum Alloys, J. Japan Inst. Metals, vol. 60 pp. 1187-1191
(“Yamamoto”) no longer applies and proposes a new rejection under 35
U.S.C. § 103(a) based on Yamamoto, which we decline to reach based on
our affirmance of the rejections of claims 3 and 4 discussed below. (Req.
Comm. 12-13; see Previous Decision 4.)
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Anticipation Rejection
Hunt
Requester contends that the Examiner’s rejection of claims 3 and 4
under 35 U.S.C. § 102(b) as anticipated by Hunt6 has not been overcome as a
result of the amendment to the claims. (Req. Comm. 10-12; RAN 24.) The
Examiner cited Hunt column 3, lines 15-19 (“[f]or every numerical range set
forth, it should be noted that all numbers within the range, including every
fraction or decimal between its stated minimum and maximum, are
considered to be designated and disclosed by this description”), for the
position that Hunt discloses the claimed ranges with sufficient specificity
noting that the ’719 Patent contains the same statement in column 2,11.
59-63. (RAN 24; see also Req. Comm. 11.) In particular, Requester argues
with respect to silicon that “about 0.03” recited in Hunt should be construed
to include “0.29% silicon” claimed by Patent Owner. (Req. Comm.)
Patent Owner contends that Hunt’s ranges encompass an infinite
amount of numbers, and thus Hunt does not disclose the recited ranges with
sufficient specificity to anticipate the ranges recited in the claims. (App.
Br. 15.)
The dispositive issue on appeal is: Does Hunt disclose the amounts of
alloy elements with sufficient specificity to anticipate claim 3?
DISCUSSION
For a rejection under 35 U.S.C. § 102 to be proper, the prior art “must
clearly and unequivocally disclose the claimed [invention] or direct those
6 Hunt et al., U.S. Patent No. 5,221,377, issued June 22, 1993.
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skilled in the art to the [invention] without any need for picking, choosing,
and combining various disclosures not directly related to each other by the
teachings of the cited reference.” Net Money IN, Inc. v. VeriSign, Inc., 545
F.3d 1359, 1371 (Fed. Cir. 2008), citing In reArkley, 455 F.2d 586, 587
(CCPA 1972) (emphasis in original).
We are persuaded that the Examiner erred in rejecting the claims.
That is, we agree with Patent Owner’s contention that the ranges alloy
elements, for example iron and silicon, disclosed in Hunt are not disclosed
with sufficient specificity to anticipate the claimed ranges.
Hunt discloses an alloy having low levels of iron and silicon, in
amounts of about 0.03 to 0.1 % by weight for each element. (Col. 20,11.
44-46; claim 4.) Although there is overlap between the range of iron recited
in the claim (0.01 to not greater than 0.039) and the range of iron disclosed
in Hunt, and the range of silicon recited in the claim (0.01 to not greater than
0.029%) abuts the range of silicon recited in Hunt, we cannot subscribe to
the view that amounts of both iron and silicon that would fall within the
range recited in the claim are disclosed in Hunt with sufficient specificity as
to anticipate claim 1. Rather, one of ordinary skill in the art would have had
to select from among the various combinations of iron and silicon described
in Hunt, including amounts falling outside the ranges recited in the claims,
in order to arrive at an amount falling within the recited range.
As a result, we reverse the Examiner’s rejection of claims 1-6 and 8 as
anticipated by Hunt.
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Obviousness Rejections
Murtha in view of Agrawal
As pointed out by Requester, the rejection of claims 3 and 4 under 35
U.S.C. § 103(a) as obvious over Murtha7 in view of Agrawal8 has not been
overcome as a result of the amendment. (RAN 7-10; Req. Comm. 14-15.)
In particular, claim 3 was amended in Patent Owner’s Request to
Reopen to delete “about” before the weight percentages of iron and silicon,
and with respect to iron, the upper limit was lowered from 0.044% to
0.039%. The claim now recites iron in an amount of 0.01 to 0.039% wt. and
silicon in an amount of 0.01 to 0.029% wt.
The teaching in Agrawal relied on by the Examiner states in relevant
part: “Advantageously both iron and silicon will be present in amounts less
than 0.03 weight percent of the total weight of the alloy and even more
advantageously iron and silicon will be present in amounts of less that [sic,
than] 0.01 weight percent of the total weight of the aluminum alloy.”
(Agrawal, col. 2,11. 1-7; RAN 8-9.) Thus, because Agrawal discloses
amounts of iron and silicon that include the amounts of iron and silicon in
claim 3 as currently amended, the Examiner’s findings with respect to
Agrawal are still applicable. (RAN 8-9; Agrawal, col. 2,11. 5-7; col. 4,1. 27
- col. 5,1. 7.) It is well established that, when there is a range disclosed in
the prior art, and the claimed invention overlaps or falls within that range,
there is a presumption of obviousness. In re Peterson, 315 F.3d 1325, 1329
(Fed. Cir. 2003); Iron Grip Barbell Co, v. USA Sports, Inc., 392 F.3d 1317,
7 Murtha, U.S. Patent No. 5,496,426, issued March 5, 1996 (“Murtha”).
8 Agrawal, U.S. Patent No. 4,867,805, issued Sept. 19, 1989.
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1322 (Fed. Cir. 2004). Even if the location values do not precisely overlap,
they “are so close that prima facie one skilled in the art would have expected
them to have the same properties,” shifting the burden to the applicant to
show they are different. Titanium Metals Corp. v. Banner, 778 F.2d 775,
783 (Fed. Cir. 1985).
In this regard, we emphasize that Agrawal discloses aluminum alloy
products having the percentages of iron and silicon disclosed therein inhibit
cavitation as a result of primary particles formed of iron and silicon, and that
the aluminum alloy products have superior engineering strain to fracture,
strain rate sensitivity and true stress, providing a reason to have selected
such amounts. (RAN 9; Agrawal, col. 4,1. 27 - col. 5,1. 7, col. 6,11. 3-6.)
Regarding the limitation that the aluminum alloy product is “absent of
magnesium silicide (Mg2Si) intermetallic particles,” as discussed above, the
’719 Patent directly relates this absence to the silicon concentration in the
alloy product. (Col. 3,11. 32-38.) Thus, the Examiner had basis to find that
the alloy product produced in accordance with Murtha in view of Agrawal
would inherently be absent of Mg2Si intermetallic particles, shifting the
burden to Patent Owner to show otherwise. See In re Best, 562 F.2d 1252,
1255 (CCPA 1977).
Hunt in view of in view of ASM Handbook, Lutjering, Magnusen,
Dubost, and Schwarmann
As pointed out by Requester, the rejection of claims 3 and 4 under 35
U.S.C. § 103(a) as obvious over Hunt in view of in view of ASM
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Handbook,9 Lutjering,10 Magnusen,* 11 Dubost,12 and Schwarmann13 has not
been overcome as a result of the amendment.14 (RAN 19-23; Req. Comm.
15-17.)
In particular, the Examiner found that the ASM Handbook discloses
that reducing the amount of impurities in an alloy in order to reduce strain
and early crack nucleation. (RAN 20.) The Examiner found that Lutjering
discloses a 7075 alloy with lowered iron and silicon content. (RAN 20-21.)
We observe that as pointed out by Requester, Lutjering discloses alloys with
iron and silicon percentages of 0.02% falling within the amended amounts in
claim 3 of iron and silicon (iron in an amount of 0.01 to 0.039% wt. and
silicon in an amount of 0.01 to 0.029% wt., each with higher fracture
toughness compared to those with higher iron and silicon percentages. (Req.
Comm. 17, FN8; Luterjing, p. 198, Fig. 29.) The Examiner concluded that it
9 ASM Handbook (Vol. 19, pages 785-800, ASM International, Dec. 1996).
10 Lutjering, G., et al., Fatigue and Fracture of Aluminum Alloys, Aluminum
Transformation Technology and Applications, pages 171-210.
11 Magnusen, Paul E., et al., Final Report: The Role of Microstructure on the
Fatigue Durability of Aluminum Aircraft Alloys, O. N. R. Contract
NOOOI4-91 -C-0128.
12 Dubost, Dr. B., et al., 7075-10FT73: tough plates and forgings with
improved fatigue strength for airframe applications (9 pages), in Aluminium
Technology ’96.
13 Schwarmann, L., Material Data of High-Strength Aluminium Alloys for
Durability Evaluation of Structures, pages 73, 74, 76, Aluminium-Verlag.
14 Requester appears to acknowledge that the rejection of claims 3 and 4
under 35 U.S.C. § 103(a) as obvious over Zheng, Z., et al., Retrogression
and Re-aging Treatment of a 7055 Type Aluminum Alloy, Chinese Journal of
Nonferrous Metals, vol. 11, pp. 771-776 (“Zheng”) in combination with the
same secondary references no longer applies. (Req. Comm. 15-17; see
Previous Decision 5; RAN 19-20.)
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would have been obvious to improve the fatigue life of an alloy disclosed by
Hunt by decreasing the content of silicon and iron impurities as taught by the
ASM Handbook and Lutjering. (RAN 21.) Additionally, the Examiner
pointed to Magnusen and Dubost as recognizing the detrimental effect of
large particles caused by the presence of iron and silicon on fatigue lifetime
tests as a reason to decrease the presence of iron and silicon to the recited
levels in the claims. (RAN 21-23.) Thus, the Examiner’s rationale still
applies even after the amendments to claim 3 set forth in Patent Owner’s
41.77(b)(1) Response.
Regarding the limitation that the aluminum alloy product is “absent of
magnesium silicide (Mg2Si) intermetallic particles,” as discussed above, the
’719 Patent directly relates this absence to the silicon concentration in the
alloy product. (Col. 3,11. 32-38.) Thus, the alloy product produced in
accordance with the combination of prior art would inherently be absent of
Mg2Si intermetallic particles. See In re Best, 562 F.2d at 1255.
Patent Owner’s Arguments
With respect to the prior art, Patent Owner refers to arguments related
to unexpected results presented in Patent Owner’s Appeal Brief15 pages
23-34 as well as the Grandt Declaration16 paragraphs 27-29 and the Bray
15 Appeal Brief filed October 18, 2012, pages 23-34.
16 Rule 132 Declaration by Dr. Alten F. Grandt, Jr. executed on
June 30, 2010, submitted with the response of February 4, 2011 (“the Grandt
Declaration”) (App. Br., App’x B).
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2011 Declaration17 paragraphs 20-30, and contends that because the
aluminum alloy product recited in claim 3 “exactly matches the
compositions of the invention alloys of Example 1, the claim scope of claim
3 is commensurate in scope with the alloys defining the unexpected results
shown in Example 1 of the ‘719 Patent.” (PO 41.77(b)(1) Response 6.)
In the Appeal Brief, Patent Owner concedes that in view of the prior
art of record, it would have been obvious to one of ordinary skill in the art to
try to lower the amounts of iron and silicon in some aluminum alloys to
improve fracture toughness, but that it would have been unexpected to
achieve high levels of fatigue resistance at low levels of iron and silicon.
(App. Br. 23.) Importantly, Patent Owner’s arguments center around the
position that none of the cited prior art of record can achieve the average
fatigue life recited in claim 3, which recitation has been removed from claim
3 as a result of Patent Owner’s amendment. (App. Br. 26; citing Bray 2011
Declaration, paras. 8-19.) Patent Owner also argues that the unexpected
results are commensurate in scope with the claims, because alloys having
lower amounts of iron and silicon down to the minimum levels claimed
would achieve better fatigue performance. (App. Br. 33-34.)
PRINCIPLES OF LAW
“In order to establish unexpected results for a claimed invention,
objective evidence of non-obviousness must be commensurate in scope with
the claims which the evidence is offered to support.” In re Clemens, 622
17 Rule 132 Declaration by Dr. Gary H. Bray executed on July 1, 2010,
submitted with the response of February 4, 2011 (“the Bray 2011
Declaration”) (App. Br., App’x E).
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F.2d 1029, 1035 (CCPA 1980). Finding the claim scope broad, and the
“probative value of appellants’ evidence . . . quite narrow,” the court
concluded this “is not a case in which the probative value of a narrow range
of data can be reasonably extended to prove the unobviousness of a broader
claimed range.” Id. at 1036. Cf. In re Kollman, 595 F.2d 48, 56 (CCPA
1979) (where it was held that the nonobviousness of a broader claimed range
was proven by a narrower range of data, when one having ordinary skill in
the art could “ascertain a trend in the exemplified data which would allow
him to reasonably extend the probative value thereof.”)
ANALYSIS
We observe that contrary to Patent Owner’s position, claim 3 is not
limited to or reasonably broader than the scope of Example 1 of the ’719
Patent for the reasons discussed above. Thus, we are not persuaded that the
evidence provided by Patent Owner is commensurate in scope with the
claims.
Nonetheless, the portion of the record that Patent Owner points to as
discussed above relies on the Bray 2009 Declaration as evidence that the
fatigue failure resistance recited in the claims would have been unexpected
because of an established trend of fatigue failure resistance. In particular,
Dr. Bray provides a graph (“the Bray Graph”) based on the experimental
results provided in the ’719 Patent, Lots A-D, in order to illustrate the extent
of the improvement in reducing the iron and silicon content from a standard
7055 alloy and for allegedly establishing a trend for unexpected results.
(Bray 2009 Declaration, para. 28.) Patent Owner contends that Lot D of
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Example 1 in the ’719 Patent provides evidence that the maximum claimed
level of 0.029 wt. % silicon achieved the claimed fatigue life properties.
(App. Br. 32.) Patent Owner argues also that alloys having lower amounts
of iron and/or silicon would achieve even better fatigue performance down
to the minimum level of 0.01 wt. % according to the Bray Graph. (App. Br.
32.)
The Bray Graph plots the weight percentage of iron and silicon versus
the log average life of Lots A-D. (Bray 2009 Declaration, para. 28.) Only
two of the graphed points, presumably corresponding to Lots B and C, meet
the average fatigue life argued by Patent Owner. (See PL 4.) The log
average fatigue life of Lots A and D, 326521 and 205922 cycles at 207 MPa
respectively, fail to rise to the log average fatigue life level of 355485 cycles
that forms the basis for the position in the Declarations that the results would
have been unexpected. (See Resp’t Br. 18; PL 4.) Stated in a different way,
Lot D, which the inventors characterized as inventive and can itself be
considered as an alloy that can be further subdivided into 4 lots and 16
specimens, provided cycle lives that appear to be no better than prior art
alloys. Although the Specification of the ’719 Patent makes clear that a log
average fatigue life of 355485 cycles is obtained from the alloy products
produced in Example 1, claim 3 is not limited to the alloys of Example 1, but
contain amounts of iron and silicon that extend beyond those used for the
alloy products of Example 1. As a result, we are not persuaded by the
Grandt Declaration and the Bray 2011 Declaration paragraphs 20-30, which
emphasize the results obtained from Example 1 as being unexpected.
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Thus, notwithstanding that claim 3 is not commensurate in scope with
Example 1, we are not persuaded by Dr. Bray’s assertion that a reliable
trendline may be ascertained from the log average fatigue life data. (Bray
2009 Decl., para. 30.) While it is true that “the unobviousness of a broader
claimed range [can be] proven by a narrower range of data,” there must be
basis to predict that the ascertained trend could be reasonably extended to
the claimed broader range. In re Clemens, 622 F.2d 1029, 1035-36
(C.C.P.A. 1980). In this case, the fact that two of the four lots in Example 1
fall below the level of fatigue life associated with unexpected results, raises
concern about the probative value of the narrower range to prove the
nonobviousness of the broader range. When it cannot even be predicted that
a specific lot having the claimed silicon and iron levels will possess the
claimed fatigue levels, we cannot find basis in such data for predicting the
performance of silicon and iron levels outside those specifically tested. This
is consistent with the ’719 Patent, which states that the “lifetime and
magnitude of the improvement may differ.” (’719 Patent, col. 6,11. 12-18.)
Therefore, Patent Owner’s reliance on the disclosure of the ’719
Patent, which states that fatigue improvements will be observed in other
specimens, as evidence that the recited average fatigue life will be improved
from the results in Example 1 as the amounts of iron and silicon are lowered
is not persuasive.
The Evidence as a Whole
In view of the discussion above evaluating both the evidence of
obviousness and the evidence of nonobviousness, we determine that the
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evidence of obviousness outweighs the evidence of nonobviousness.
Specifically, we view the evidence in favor of reducing the iron and silicon
content in the alloys of Murtha to within the claimed ranges as suggested by
Agrawal or reducing the iron and silicon content in the alloys of Hunt by
decreasing the content of silicon and iron impurities as taught by the ASM
Handbook, Lutjering, Magnusen and Dubost as outweighing the evidence of
nonobviousness in view of discussed deficiencies thereof.
Accordingly, Patent Owner’s amendment submitted with the
Response filed under 37 C.F.R. 41.77(b)(1) is insufficient to overcome all of
the prior art rejections of record for claims 3 and 4 in this reexamination.
Thus, we modify our Decision on Appeal to reverse the rejection of claims 3
and 4 as obvious over Murtha and Agrawal and Hunt in view of ASM
Handbook, Lutjering, Magnusen, Dubost, and Schwarmann pro forma, such
that the Examiner’s rejections of claims 3 and 4 under 35 U.S.C. § 103(a)
are affirmed.
DECISION
In sum:
1. The affirmance of the Examiner’s rejections of claim 14 over prior
art is moot in view of the cancellation of claim 14;
2. The Examiner’s rejection of claims 1, 2, 5, 6, and 8 under 35
U.S.C. § 112, 1st paragraph as lacking enablement remains affirmed;
3. The Examiner’s rejection of claims 3 and 4 under 35 U.S.C. § 112,
1st paragraph as lacking enablement is reversed in view of the amendments
to claim 3;
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4. The rejection set forth in the Decision on Appeal and maintained
by Examiner of claims 1, 2, 5, 6, and 8 under 35U.S.C. § 112, 1st paragraph
as lacking written description remains affirmed;
5. The Examiner’s rejection of claims 3 and 4 under 35 U.S.C. § 112,
1st paragraph as lacking written description is reversed in view of the
amendments to claim 3;
4. The rejection set forth in the Decision on Appeal and maintained
by the Examiner for claims 1, 2, 5, 6, and 8 under 35 U.S.C. § 112, 2nd
paragraph is affirmed;
5. The rejection set forth in the Decision on Appeal of claims 3 and 4
under 35 U.S.C. § 112, 2nd paragraph is withdrawn in view of the
amendments to claim 3;
6. The Examiner’s rejections of claims 1, 2, 5, 6 and 8 over prior art
remain reversed pro forma;
7. The rejection of claims 3 and 4 under 35 U.S.C. § 102(b) as
anticipated by Hunt is reversed; and
8. The rejections of claims 3 and 4 under 35 U.S.C. § 103(a) as
obvious over Murtha in view of Agrawal and Hunt in view of ASM
Handbook, Lutjering, Magnusen, Dubost, and Schwarmann are affirmed.
AFFIRMED: 37 C.F.R, § 41.77(f)
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PATENT OWNER:
Arconic Inc.
C/O Greenberg Traurig, LLP
500 Campus Drive, Suite 400
Florham Park, NJ 07932
THIRD-PARTY REQUESTER:
Jennifer P. Yancy
Yancy IP Law, PLLC
5904 Jane Way
Alexandria, VA 22310
THIRD-PARTY REQUESTER:
Womble, Carlyle, Sandridge & Rice, LLP
P.O. Box 7037
Atlanta, GA 30357-0037
lb
31