Ex Parte Brice

Board of Patent Appeals and Interferences

Oct 18, 2011

11526787 (B.P.A.I. Oct. 18, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte CRAIG A. BRICE
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Appeal 2010-008814
Application 11/526,787
Technology Center 1700
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Before BRADLEY R. GARRIS, TERRY J. OWENS, and BEVERLY A.
FRANKLIN, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner's
rejections under 35 U.S.C. § 103(a) of claims 1, 2, and 4-8 as unpatentable over
Takeuchi (US 4,902,359) and of claims 3 and 9-16 as unpatentable over this
reference in various combinations with other prior art of record. We have
jurisdiction under 35 U.S.C. § 6.
We REVERSE.

Appeal 2010-008814
Application 11/526,787
 
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Appellant claims a method of forming armor comprising: providing a base
material, a heat source, and a metallic feedstock; delivering a gaseous alloying
element; and melting the metallic feedstock with the heat source to form a molten
pool on the base material "such that the metallic feedstock alloys only with the
gaseous alloying element" and "the base material is not alloyed with the gaseous
alloying element" (claim 1; see also claim 11).
Representative claim 1 reads as follows:
1. A method of forming armor, comprising:

(a) providing a base material, a heat source, and a metallic feedstock in a
gaseous atmosphere;

(b) delivering a gaseous alloying element proximate to the metallic
feedstock;

(c) converging the heat source on the metallic feedstock and the gaseous
alloying element;

(d) melting the metallic feedstock with the heat source to form a molten
pool on the base material, such that the metallic feedstock alloys only with the
gaseous alloying element to form a composition on the base material; and

(e) cooling and solidifying the composition to form a first layer directly
on the base material, the first layer having different mechanical and physical
properties than the base material, and the base material is not alloyed with the
gaseous alloying element.

The Examiner concedes that "Takeuchi . . . does not disclose that the
metallic feedstock alloys only with the gaseous alloying element as claimed in the
instant claim 1" (Ans. para. bridging 4-5). In this regard, the Examiner appears to
recognize, and certainly does not dispute, the Appellant's correct observation (Br.
10) that Takeuchi's method forms a molten pool of member surface material (i.e.,
the claimed base material) which alloys with hardening alloy elements (i.e., the
Appeal 2010-008814
Application 11/526,787
 
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claimed metallic feedstock) and hardening gas (i.e., the claimed gaseous alloying
element). Based on this correct observation, Appellant argues that Takeuchi fails
to disclose or suggest not just the claim 1 requirement that "the metallic feedstock
alloys only with the gaseous alloying element" but also the requirement that "the
base material is not alloyed with the gaseous alloying element" (id. at 9-11).
According to the Examiner, independent claim 1 encompasses and Takeuchi
discloses an embodiment wherein the base material and the metallic feedstock
comprise the same material (e.g., titanium or titanium alloy) and that in the context
of such an embodiment claim 1 fails to distinguish over Takeuchi (Ans. para.
bridging 4-5). Specifically, it is the Examiner's position that, if the base material
and feedstock comprise the same material in claim 1 and in Takeuchi,
the same melting of the surface of the base material and the same
alloying of the titanium or titanium alloy powder feedstock, the
gaseous alloying element and the base material at the interface of the
molten pool and the surface of the base material as in the method of
Takeuchi . . . would inherently take place in the process of the instant
invention
(id.).
The Examiner's above-quoted position is contrary to the requirements of
claim 1. Even if the base material and metallic feedstock of claim 1 were to
comprise the same material, claim 1 still requires that "the metallic feedstock
alloys only with the gaseous alloying element" and that "the base material is not
alloyed with the gaseous alloying element." The Examiner has provided no
discernible, convincing rationale for the position that such requirements are
satisfied when the claimed base material and metallic feedstock comprise the same
material. Therefore, based on the record before us, we agree with Appellant that
Appeal 2010-008814
Application 11/526,787
 
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Takeuchi contains no disclosure or suggestion of the claim requirements under
review.
Analogous reasoning applies to the corresponding requirements of claim 11
which is the only other independent claim on appeal.
For the above stated reasons, we cannot sustain any of the Examiner's § 103
rejections.
The decision of the Examiner is reversed.
REVERSED

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