Ex Parte Drillet et alDownload PDFPatent Trial and Appeal BoardOct 27, 201412669188 (P.T.A.B. Oct. 27, 2014) Copy Citation 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. 12/669,188 05/11/2010 Pascal Drillet 704.1017 2473 23280 7590 10/27/2014 Davidson, Davidson & Kappel, LLC 485 7th Avenue 14th Floor New York, NY 10018 EXAMINER LEE, REBECCA Y ART UNIT PAPER NUMBER 1734 MAIL DATE DELIVERY MODE 10/27/2014 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 AND TRIAL APPEAL BOARD ____________ Ex parte PASCAL DRILLET and DAMIEN ORMSTON ____________ Appeal 2013-004681 Application 12/669,188 Technology Center 1700 ____________ Before PETER F. KRATZ, JEFFREY T. SMITH, and JEFFREY W. ABRAHAM, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from the Final rejection1 of claims 1–12. We have jurisdiction under 35 U.S.C. § 6. Appellants’ invention is directed generally to a hot rolled steel sheet or part having a tensile strength greater them 800 MPa and an elongation at break greater than 10%. (Spec. 1.) Claim 1 is representative of the appealed subject matter and is reproduced below: 1. A hot rolled steel sheet or part having a tensile strength greater than 800 MPa and an elongation at break greater 1 Mailed July 12, 2012. Appeal 2013-004681 Application 12/669,188 2 than 10%, the composition of which comprises, the contents being expressed by weight: 0.050% ≤ C ≤ 0.090% 1% ≤ Mn ≤ 2% 0.015% ≤ Al ≤ 0.050% 0.1% ≤ Si ≤ 0.3% 0.10% ≤ Mo ≤ 0.40% S ≤ 0.010% P ≤ 0.025% 0.003% ≤ N ≤ 0.009% 0.12% ≤ V ≤ 0.22% Ti ≤ 0.005% Nb ≤ 0.020% and, optionally, Cr ≤ 0.45% the balance of the composition consisting of iron and inevitable impurities resulting from the smelting, the microstructure of said sheet or said part comprising, as a surface fraction, at least 80% upper bainite, the possible complement consisting of lower bainite, martensite and residual austenite, the sum of the martensite and residual austenite contents being less than 5%, wherein the microstructure does not contain ferrite. The following rejection from the Examiner’s Final Action is presented for our review: Claims 1–12 rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Heller et al. (DE 10130774 C1, published Dec. 12, 2002) in view of Gohda et al. (US 3,807,990, patented Apr. 30, 1974).2 2 We rely upon the machine translation of Heller that has been entered in the electronic record. Appeal 2013-004681 Application 12/669,188 3 OPINION The dispositive issue for this appeal is the following: Did the Examiner err in determining that it would have been obvious to a person of ordinary skill in the art to form Heller’s hot-rolled steel sheet by the conditions of Gohda to form a steel sheet having the microstructure as required by the subject matter of independent claim 1? We answer this question in the negative for the reasons provided by the Examiner. We refer to the Action for a complete statement of the appealed prior art rejection (Final Act. 2–4). Appellants argue Heller includes ferrite whereas the present claims exclude ferrite. (Br. 5). Appellants further argue Heller clearly teaches the inclusion of ferrite so that there would have been no motivation to modify Heller with Gohda to omit ferrite. (Id.) Appellants’ arguments do not convince us of reversible error in the Examiner’s obviousness determination. Appellants (see Appeal Brief, generally) have not disputed the Examiner’s findings that Heller describes hot-rolled aluminum alloy compositions that comprise the elements C, Mn, Al, Si, Mo, S, P, N, V, Ti, Nb, Cr, and Fe all in amounts that overlap the ranges specified in independent claim 1. (Final Act. 2–3.) Ordinarily, where there is a range disclosed in the prior art, and the claimed invention falls within that range, there is a presumption of obviousness. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). See also In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005) (claimed alloy held obvious over prior art alloy that taught ranges of weight percentages overlapping, and in most instances completely encompassing, claimed ranges; furthermore, narrower Appeal 2013-004681 Application 12/669,188 4 ranges taught by reference overlapped all but one range in claimed invention); Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004); accord Lazare Kaplan Int'l, Inc. v. Photoscribe Techs., Inc., 628 F.3d 1359, 1380–81 (Fed. Cir. 2010). The Examiner recognized that Heller teaches the microstructure of the sheet can be predominantly bainitic and Gohda discloses conditions suitable for forming steel where upper bainite is easily formed. (Final Act. 3; Heller page 1 last 3 paragraphs to page 2, first 2 paragraphs; Gohda, col. 2.). Heller discloses the alloy composition can comprise C, Mn, and Nb in the amounts specified by Gohda. (See Heller abstract, claim 1.) Gohda specifically states: When C is contained in a range of 0.05 to 0.08 percent and Mn is contained in an amount of more than 2.3 percent with a coexistence of a small amount of Nb solid-dissolved by heating prior to hot-rolling, the transformation of forming proeutectoid ferrite and pearlite is remarkably retarded and an upper bainite is easily formed. That is, a steel made only of an upper bainite structure containing neither proeutectoid ferrite nor pearlite can be obtained in a cooling process after the hot-rolling with a considerably wide range of cooling rate. (Gohda, col. 2, ll. 1–12.) These conditions are substantially similar to conditions described in the Specification. (See Spec. 6–9.) A person of ordinary skill in the art would have recognized that forming the alloy of Heller utilizing the conditions of Gohda would provide steel made only of an upper bainite structure. Heller further discloses the inventive steel alloy can be manufactured from particular composition and production conditions to form a variety of steels including dual-phase steels, bainitic steel or Appeal 2013-004681 Application 12/669,188 5 complex-phase steel. (Heller, 1 ¶ 12.) Heller also discloses the exact composition of the microstructure of the obtained hot strip is determined by the chemical properties, the heating, rolling, and cooling conditions and the coiling temperature. (Heller, 2 ¶ 2). Consequently, Appellants’ arguments expose no substantive error in the Examiner’s determination that it would have been obvious to a person of ordinary skill in the art to form Heller’s hot-rolled steel sheet by the conditions which would have resulted in a steel sheet having the microstructure as required by the subject matter of independent claim 1in light of the additional teachings of Gohda. For the foregoing reasons and those presented by the Examiner we sustained the appealed rejections. ORDER The Examiner’s decision to reject claims 1–12 under 35 U.S.C. § 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED cdc Copy with citationCopy as parenthetical citation