Ex Parte Akers et al

Patent Trial and Appeal Board

Sep 15, 2016

13966616 (P.T.A.B. Sep. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/966,616 08/14/2013
27885 7590
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
09/16/2016
FIRST NAMED INVENTOR
Ronald R. Akers
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ATME 200160US01 2870
EXAMINER
YANG,JIE
ART UNIT PAPER NUMBER
1733
MAILDATE DELIVERY MODE
09/16/2016 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
Ex parte RONALD R. AKERS and ALAN KOCH
Appeal2016-006871
Application 13/966,616
Technology Center 1700
Before BRADLEY R. GARRIS, WESLEY B. DERRICK, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
Appellants2 appeal under 35 U.S.C. § 134 from a rejection of claims
2-17 and 21. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 In our opinion below, we refer to the Non-Final Action mailed August 5,
2015 ("Non-Final Act."); the Final Action mailed September 17, 2015
("Final Act."), the Appeal Brief filed January 6, 2016 ("App. Br."), the
Examiner's Answer mailed April 28, 2016 ("Ans."), and the Reply Brief
filed June 28, 2016 ("Reply").
2 Appellants identify Ajax TOCCO Magnethermic Corporation as the real
party in interest. App. Br. 1.
Appeal2016-006871
Application 13/966,616
The claims are directed to a method for processing a semi liquid metal
and/or a semi solid metal, the method comprising a dual frequency control
method for semi-liquid metal processing. Sole independent claim 2,
reproduced below, is illustrative of the claimed subject matter:
2. A method for processing a semi liquid metal and/or a semi solid
metal, the method comprising:
introducing a semi liquid metal and/or a semi solid metal into a
crucible that is at least partially encircled by at least one induction
coil;
holding the semi liquid metal and/or semi solid metal in the
crucible while regulating a crucible temperature by controlling the
provision of power to the at least one induction coil;
cooling the semi liquid metal and/or semi solid metal in the
crucible while stirring the semi liquid metal and/or semi solid metal in
the crucible by providing AC power to the at least one induction coil
at a first frequency;
following the cooling and stirring, holding the semi liquid metal
and/or semi solid metal in the crucible while providing AC power to
the at least one induction coil at a second frequency higher than the
first frequency to at least partially melt a portion of a metal charge
formed of the semi liquid metal and/ or semi solid metal in the crucible
proximate to at least one sidewall of the crucible; and
thereafter, tilting the crucible to remove the metal charge from
the crucible.
REFERENCE
Koch3 US 8,241,390 B2 Aug. 14, 2012
3 The Examiner refers to Koch as "US '390."
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Appeal2016-006871
Application 13/966,616
REJECTIONS
Claims 2-17 and 21 stand rejected (1) under 35 U.S.C. § 103(a) as
unpatentable over Koch, and (2) on the ground of nonstatutory obviousness-
type double patenting as unpatentable over claims 1-34 of Koch.
OPINION
Claim 2 requires "cooling the semi liquid metal and/or semi solid
metal in the crucible while stirring ... by providing AC power to the at least
one induction coil at afirstfrequency." App. Br. at 14 (Claims App'x)
(emphasis added). In addition, claim 2 requires
following the cooling and stirring, holding the semi liquid metal
and/or semi solid metal in the crucible while providing AC power
to the at least one induction coil at a second frequency higher
than the first frequency to at least partially melt a portion of a
metal charge formed of the semi liquid metal and/or semi solid
metal in the cn.1cible proximate to at least one sidewall of the
crucible
Id. (emphasis added).
In rejecting claim 2 as obvious, the Examiner finds that Koch reads on
all of the essential process steps of the claim, and teaches a powered
induction coil positioned about the generator that operates at some known
alternating frequency in order to rapidly change current flow induced into
the load material and physical forces that act upon the load. Non-Final Act.
3.4 The Examiner acknowledges that Koch "does not specify applying first
4 The Examiner discusses his reasoning on obviousness over Koch only in
the Non-Final Action; there is no additional explanatory discussion in either
the Final Rejection or Answer.
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Appeal2016-006871
Application 13/966,616
frequency and then higher second frequency at cooling process." Id.
However, the Examiner contends that
[Koch] teaches that a particular frequency can be selected where
the cooling rate of the material is the primary parameter, with a
secondary parameter being the agitation of the material to
achieve a selected homogeneity, and other or additional
parameters can be used to selected [sic] the one or more
frequencies generated by the AC input power supply.
Id. (emphasis added). Based on these findings, the Examiner concludes:
It would have been obvious to one of ordinary skill in the art at
the time the invention was made to optimize the initial and
secondary frequency according the disclosure of [Koch] with
expected success since [Koch] disclose[ s] the same utility
throughout the disclosed ranges.
Id. at 4 (emphasis added).
Appellants argue that Koch, in referring to more than one frequency,
"is referring to multiple frequencies delivered at the same time and delivered
throughout the entire process." App. Br. 7. According to Appellants; "Koch
is not referring to a first frequency followed by a second, different
frequency, much less a first frequency followed by a second frequency
which is higher than the first frequency." Id.
The Examiner has not shown that one of ordinary skill in the art at the
time of the invention would view Koch as teaching application of at least
two frequencies to a semi liquid metal and/or semi solid metal in a crucible.
Moreover, the Examiner's conclusion that one of ordinary skill would have
found it obvious to optimize initial and secondary frequencies, thereby
resulting in the claimed invention, entirely fails to provide the required
articulated reasoning with rational underpinning to support obviousness. See
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) ("[R]ejections on
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Appeal2016-006871
Application 13/966,616
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness."), quoted with
approval in KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The
Examiner gives no rationale for what one would be trying to achieve by
optimizing either a first or a second frequency. Indeed, the Examiner fails to
even address the claim requirement of an "induction coil at a second
frequency higher than the first frequency to at least partially melt a portion
of a metal charge." Therefore, we do not sustain the § 103 rejection of
claims 2-17 and 21 as unpatentable over Koch.
The Examiner provides no reasoning in addition to that above for
rejecting the claims for nonstatutory obviousness-type double patenting over
claims 1-34 of Koch. Therefore, we also do not sustain the double patenting
rejection.
DECISION
For the above reasons, the Examiner's rejection of claims 2-17 and 21
is REVERSED.
REVERSED
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