Ex Parte Hammer et al

Patent Trial and Appeal Board

Jun 7, 2017

12673279 (P.T.A.B. Jun. 7, 2017)

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.
12/673,279 05/05/2010 Brigitte Hammer 3988-100334 7209
28289 7590 06/09/2017
THE WEBB LAW FIRM, P.C.
ONE GATEWAY CENTER
420 FT. DUQUESNE BLVD, SUITE 1200
PITTSBURGH, PA 15222
EXAMINER
YEE, DEBORAH
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
06/09/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patents @ webblaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIGITTE HAMMER, THOMAS HELLER, EKATERINA
BOCHAROVA, DOROTHEA MATTISSEN, GUNTER STICH, and
SILKE STRAUSS
Appeal 2015-007644
Application 12/673,2791
Technology Center 1700
Before MICHAEL P. COLAIANNI, WESLEY B. DERRICK, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on an appeal under 35U.S.C. § 134 from the
Examiner’s maintained rejection under 35 U.S.C. § 103 of claims 32-71
over Kunio2 and of claims 32-62, 64, and 66-71 over Kizu.3 An oral
1 Appellants identify ThyssenKrupp Steel Europe AG as the real party in
interest. Appeal Brief filed March 25, 2015 (“Appeal Br.”), 2.
2 Kunio et al., JP 068548, published March 17, 2005; the Examiner relies on
a machine translation, which use is not contested.
3 Kizu et al., US 2007/0144633 Al, published June 28, 2007.
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Application 12/673,279
hearing was held on May 9, 2017. We have jurisdiction under 35 U.S.C.
§6.
We AFFIRM the decision rejecting claims 32-71 and designate the
rejection of claim 53 as a NEW GROUND OF REJECTION.
THE INVENTION
The claimed subject matter on appeal relates to a steel having more
than one phase, a flat product produced from the steel, and processes for
producing the flat product. Specification filed February 12, 2010 (“Spec.”),
Abstract; see also claims 32, 52, 58, and 59.
The sole independent claim is reproduced below.
32. A multi-phase steel, having a structure comprising
20- 70 % martensite, up to 8 % retained austenite and the
remainder ferrite, bainite or bainite and ferrite, and a tensile
strength of at least 950 MPa, the steel consisting of (in % by
weight):
C: 0.050 0.105%,
Si: 0.10 0.60 %,
Mn: 2.10 2.80 %,
Cr: 0.20 0.80 %,
Ti: 0.02 0.10%,
B: < 0.0020 %,
Mo: < 0.25 %,
Al: < 0.10%,
Cu: up to 0.20 %,
Ni: up to 0.10 %,
Ca: up to 0.005 %,
P: up to 0.2%,
S: up to 0.01 %,
N: up to 0.012 %
the remainder being iron and unavoidable impurities.
Appeal Br. (Claims Appendix) 24.
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DISCUSSION
Upon consideration of the evidence on this appeal record and each of
Appellants’ contentions, we affirm the Examiner’s decision rejecting all
claims.4 However, we designate our affirmance as including new grounds of
rejection because our reasons for affirmance of the rejections of claim 53
differ materially from those expressed by the Examiner. See In re Stepan
Co., 660 F.3d 1341, 1344 (Fed. Cir. 2011). Further, we affirm the decision
as to claims 68 and 69 solely on the grounds of unpatentability over Kizu.
We add the following.
Rejection over Kunio
Kunio discloses a high strength steel sheet and method for its
manufacture. The Examiner relies on the disclosure in Kunio of a multi­
phase steel composition having alloying constituents with wt. % ranges that
overlap those recited in claim 32. Examiner’s Answer issued June 18, 2015
(“Ans.”), 2 (citing Kunio 19). The Examiner concludes the overlap
establishes a prima facie case of obviousness. Ans. 2 (citing In re Woodruff,
919 F.2d 1575 (Fed. Cir. 1990); In re Wertheim, 541 F.2d 257 (CCPA
1976)). The Examiner further determines that one of ordinary skill in the art
would have been led to the narrower ranges claimed by no more than routine
experimentation because Kunio teaches the same objective, a steel for the
manufacture of flat products for vehicle body construction having high
tensile strength of at least 950 MPa. Ans. 2-3.
4 We limit our decision to consideration of arguments properly and timely
raised, and to the extent that Appellants have raised new arguments during
the oral hearing, we decline to consider them. See 37 CFR § 41.47(e).
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The Examiner also relies on the disclosure of steel example C having
a composition meeting claim 32 except for the carbon content, which at
0.149% is slightly higher than the upper bound set forth in claim 32,
0.105%. Ans. 3 (citing Kunio, Table 1). The Examiner further finds
examples C-1 to C-9 formed from steel example C have tensile strengths
meeting the claimed tensile strength range claimed of at least 950 MPa.
Ans. 3. The Examiner further finds Kunio teaches a carbon content of 0.01
to 0.3% to be acceptable and that “at least 0.01% [carbon] can be added to
obtain a tensile strength of > 980 MPa but restricted to no more than 0.3% to
avoid hydrogen embrittlement.” Ans. 3 (citing Kunio, 122). The Examiner
determines that the skilled artisan would have been led to the claimed steel
alloy as a matter of choice and routine optimization of example C to obtain
the desired level of tensile strength. Ans. 3—4.
Appellants proffer arguments as to all claims on the basis of
independent claim 32, with further arguments as to claims 36-40 and 42-50
as a group, claim 53, claim 58, claim 68, and claim 69.
Appellants contend that Kunio permits the selection of any
composition within the broadly disclosed ranges and would not have
reasonably led a person skilled in the art to select the composition of claim
32. Appeal Br. 7. Appellants emphasize the importance of various process
parameters in forming particles within the steel to provide resistance to
hydrogen embrittlement and that the purposes of Kunio are met over a broad
range of compositions. Appeal Br. 6-7. Appellants further highlight with
calculations the large number of compositions consistent with Kunio’s broad
disclosure. Appeal Br. 7-12.
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As to the Examiner’s reliance on Kunio’s example C, Appellants
contend that the proper analytical framework is the “lead compound”
approach. Appeal Br. 12-13 (citing Otsuka Pharmaceutical Co., Ltd. v.
Sandoz, Inc., 678 F.3d 1280 (Fed. Cir. 2012)). Appellants further argue that
the Examiner has failed to provide reasons for selecting example C and has
provided no reason that would motivate the skilled artisan to attempt the
experimentation necessary to modify example C with a reasonable
expectation of success. Appeal Br. 13.
On this record, we find the preponderance of evidence supports the
Examiner’s determination that one of ordinary skill in the art, at the time of
the invention, armed with the knowledge of Kunio, would have been led to
the subject matter of claim 32 within the meaning of 35 U.S.C. § 103.
Regarding the arguments grounded on the many choices of possible alloy
compositions, we find them unpersuasive where Appellants fail to address
the guidance leading from the broad disclosure to that more closely related
to the subject matter claimed, including example C relied on by the
Examiner and the teachings as to the amounts of carbon to include to
provide sufficient desired strength and to avoid hydrogen embrittlement.
Further, we are directed to no authority requiring use of the “lead
compound” approach championed by Appellants in determining the
obviousness of a sub-genus in light of a genus. See generally Appeal Br.;
Reply Brief filed August 18, 2015 (“Reply Br.”). We further note that,
while highlighting the importance of various process parameters to provide
resistance to hydrogen embrittlement (Appeal Br. 6-7), Appellants fail to
contend any basis for an alloy within the claimed elemental composition
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ranges not meeting the recited limitations of claim 32 as to microstructure
and to tensile strength (see generally Appeal Br.; Reply Br.).
As to claims 36^40 and 42-50, each reciting further narrowed ranges
of various alloying elements set forth in claim 32, Appellants contend the
odds of randomly selecting the compositions are even more remote than for
claim 32. Appeal Br. 14. Appellants further contend that claims 37, 40, 42-
46, and 48 “each contain further limitations on the composition that would
further distinguish the claimed compositions from that of example C of
Kunio.” Appeal Br. 14.
Appellants’ contentions against the obviousness of these claims do not
rise to the level of cogent argument—or even to the level of identifying the
differences between the prior art and the claimed ranges and their
significance—and are not persuasive of reversible error. Cf. In re Baxter
TravenolLabs, 952 F.2d 388, 391 (Fed. Cir. 1991) (“Baxter has not argued
nonobviousness with any particularity. ... It is not the function of this court
to examine the claims in greater detail than argued by an appellant, looking
for nonobvious distinctions over the prior art.”). Further, Appellants’
contentions fail to provide any sound basis that the skilled artisan would not
have been led to steel alloys according to the claims as a matter of choice
and routine optimization.
As to claim 53, directed to a “hot strip [comprising a multi-phase steel
according to claim 32] which has been hot-rolled without a subsequently
performed cold rolling process” (claims 52-53), Appellants contend that
Kunio suggests that cold rolling is necessary for its intended purpose and,
accordingly, the skilled artisan would be led away from the claimed product.
Appeal Br. 15 (Kunio, 1 54). Appellants further contend, in response to the
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Examiner’s reliance on a product-by-process rationale (Ans. 4), that cold
rolling a previous hot-rolled steel strip results in changes in micro structure
(Reply Br. 2-3, citing Kunio, 146, Kizu, ^fl[ 106-108).
Whether cold rolling changes the micro structure of a hot-rolled steel
strip or does not, we are of the opinion that one of ordinary skill would have
been led to the subject matter of claim 53 because a hot-rolled steel strip as
an intermediate prior to cold-rolling is sufficient to support this ground of
rejection. Cf. In reMullin, 481 F.2d 1333, 1335-36 (CCPA 1973) {citingIn
re Herbert, 461 F.2d 1390 (CCPA 1972) (“It matters not one whit that it was
intended to be and appreciated as being an intermediate structure rather than
an end use item.”)); In re Johnson, 162 F.2d 924, 928 (CCPA 1947) (“In our
opinion the fact that Braunbeck intends his flaky product [i.e., an
intermediate product,] to be reduced to flour and applicants intend the same
flaky product not to be reduced to flour does not entitle applicants to a patent
on the flaky product.”). Because we rely on different reasoning than
explicitly set forth by the Examiner, we designate the obviousness rejection
of claim 53 over Kunio as a new ground.
As to claim 58, reciting, inter alia, “delivering the [hot-rolled] strip
without performing a cold rolling process,” Appellants contend that a person
skilled in the art would have been led away from the subject matter of the
claim. Appellants position is grounded on the contentions that Kunio is
directed to solving problems related to hydrogen embrittlement and appears
to teach control of precipitates, particularly the size of particles formed, and
that “cold rolling is a necessary step ... to achieve the intended effect of
controlling particle size.” Appeal Br. 15-16 (citing Kunio, Abstract, 54).
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Appellants further contend that claim 58 does not merely require avoiding
cold rolling before delivery, but also after delivery. Reply Br. 3.
Appellants’ nascent “teaching away” argument is unpersuasive that
the Examiner erred because avoiding hydrogen embrittlement is not
reflected in the limitations of claim 58, because Appellants fail to
sufficiently establish that the cold rolling is required to reach an acceptable
strip product, and because, even assuming that a cold rolling step was
required, Appellants fail to establish that a hot-rolled strip could not be
delivered prior to a subsequent cold rolling operation. DyStar Textilfarben
GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364
(Fed. Cir. 2006) (“We will not read into a reference a teaching away from a
process where no such language exists.”). As to Appellants’ argument
grounded on claim 58 requiring that there is no cold rolling even after
delivery, it is without persuasive merit because it is not commensurate with
the plain language of the claim and, on this record, we are directed to no
basis in the Specification for a contrary interpretation. See generally Appeal
Br.; Reply Br.
As to claims 68 and 69, reciting that the structure “comprises a
bainite/bainitic ferrite matrix” and “comprises bainite/portions of globular
ferrite matrix,” respectively, Appellants contend the Examiner failed to
address these features in the Final Office Action (Appeal Br. 16) and that
these features are not necessarily present, i.e., not inherent, because “the
features of claims 68 and 69 are present in some, but not all of the
exemplary embodiments” of the instant application. Reply Br. 4.
In the Answer, the Examiner relies on the reasoning that Kunio can
include bainitic ferrite (claim 68) and globular ferrite (claim 69) because
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other specifically recited phases do not necessarily rise to 100% and on the
basis of inherency due to similarity in chemical composition and the method
of manufacture. Ans. 5-6 (citing Kunio, ^ 21).
On this record, we do not find the Examiner’s position well-founded
because it is not sufficient that Kunio does not foreclose inclusion of these
recited features and Appellants maintain that these recited features are not
inherent on the basis of exemplary embodiments in the Specification.5
According, we reverse the Examiner’s obviousness rejection of claims 68
and 69 over Kunio.
Rejection over Kizu
Kizu discloses a high strength steel sheet and method for its
manufacture. The Examiner relies on the disclosure in Kizu of a steel
composition having alloying constituents with wt. % ranges that overlap
those recited in claim 32. Ans. 7 (citing Kizu 45-91). The Examiner
concludes the overlap establishes a prima facie case of obviousness. Ans. 2
(citing Woodruff, 919 F.2d 1575; Wertheim, 541 F.2d 257). The Examiner
further finds the steel of Kizu in || 93-97 has a phase structure that overlaps
and suggests the steel claimed. Ans. 7. The Examiner also finds Kizu
discloses working examples satisfying the claimed tensile strength of at least
950 MPa. Ans. 7 (citing Kizu, Table 4). The Examiner further determines
that one of ordinary skill in the art would have found it obvious to select the
instant claimed wt. % ranges over the broader prior art alloy disclosure
because Kizu teaches the same objective of manufacturing a steel and flat
5 While Appellants do not direct us to particular embodiments in support of
their contentions, we deem Appellants’ unequivocal statements sufficient in
light of Appellants’ duty of candor and good faith.
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steel products for vehicle body construction having high tensile strength.
Ans. 7.
The Examiner also relies on the disclosure of example Z having a
composition meeting claim 32 except for the presence of 0.04% Nb and the
absence of 0.2-0.8% Cr having a tensile strength of 980 MPa and that Nb
and Cr are optional strength-generating elements. Final Office Action issued
March 25, 2014 (“Final Act.”), 2-3 (citing Kizu, 23, 74-75, 81-82,
Tables 2 & 4, claims 1-3); Ans. 7-8. The Examiner determines that it
would have been obvious to one of ordinary skill in the art to replace the Nb
in example Z with Cr as both promote tensile strength and it would have
been simply a matter of choice to substitute one for the other. Final Act. 3-
4; see also Ans. 8.
Appellants proffer arguments as to all claims on the basis of
independent claim 32, with further arguments as to claims 36, 40, 44, 46,
and 48 as a group, claim 53, claim 58, claim 68, and claim 69.
Appellants contend that arriving at the subject matter of claim 32 from
the disclosed ranges of Kizu would require a number of decisions and that,
even having made the necessary selection of what elements to include and
exclude, the selection would not account for arriving at the composition with
the microstructure and high tensile strength claimed. Appeal Br. 17-18.
As to the Examiner’s reliance on example Z, as above in respect to
Kunio’s example C, Appellants contend that the proper analytical
framework is the “lead compound” approach. Appeal Br. 18-19 (citing
Kizu, Table 2). Appellants further argue that the Examiner has failed to
provide reasons for selecting the composition of example Z as a starting
point, provides no reason for modifying example Z to exclude Nb and to add
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Cr, and that there is no expectation of necessarily arriving at steel having a
tensile strength of at least 950 MPa. Appeal Br. 19. Appellants also contend
that it must be considered whether the steel having been modified by
substitution of Nb with Cr would continue to meet the microstructural
requirements of claim 32. Appeal Br. 19.
On this record, we find the preponderance of evidence supports the
Examiner’s determination that one of ordinary skill in the art, at the time of
the invention, armed with the knowledge of Kizu, would have been led to
the subject matter of claim 32 within the meaning of 35 U.S.C. § 103.
Regarding the arguments grounded on the many choices of possible alloy
compositions, we find them unpersuasive where Appellants fail to squarely
address the guidance leading from the broad disclosure to that more closely
related to the subject matter claimed, including example Z relied on by the
Examiner and the teachings as to the phase structure of Kizu’s steels (Ans. 7,
citing Kizu, Tflf 45-91, 93-97, Table 4), as well as the guidance as to use of
alternative strength generating elements (Ans. 7-8, citing Kizu, H 74, 81
(see also 75, 82), Tables 2, 4, claims 1, 3). Further, in merely contending
that there would not be an expectation that the strength required would
necessarily result or that it must be considered whether the micro structure
would be changed, Appellants fail to direct us to any persuasive evidence or
to proffer sufficiently persuasive argument why the teachings of Kizu, as
relied on by the Examiner, would not have led one of ordinary skill to the
claimed subject matter with a reasonable expectation of success.
As to claims 36, 40, 44, 46, and 48, each reciting further narrowed
ranges of various alloying elements set forth in claim 32, Appellants contend
the odds of randomly selecting the compositions are even more remote than
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for claim 32. Appeal Br. 20. Appellants further contend that claims 36, 40,
44, 46, and 48 “each contain further limitations on the composition that
would further distinguish the claimed compositions from that of example Z
of Kizu.” Appeal Br. 20.
As discussed above with respect to Kunio, Appellants’ contentions do
not rise to the level of cogent argument and are not persuasive of reversible
error, particularly where they fail to address the Examiner’s reasoning
grounded on choice and routine optimization of steel for the same objective.
Cf. Baxter Travenol Labs, 952 F.2d at 391.
As to claim 53, directed to a “hot strip [comprising a multi-phase steel
according to claim 32] which has been hot-rolled without a subsequently
performed rolling process” (claims 52-53), Appellants contend that Kizu
teaches that cold rolling is necessary for its intended purpose—an increase
of the Young’s modulus— and, accordingly, the skilled artisan would be led
away from the claimed product. Appeal Br. 20-21 (quoting Kizu, 1 108).
Appellants further contend, in response to the Examiner’s reliance on a
product-by-process rationale (Ans. 9), that cold rolling a previous hot-rolled
steel strip results in changes in microstructure (Reply Br. 2-3, citing Kunio,
146, Kizu, 11 106-108).
As discussed above with respect to Kunio, we are of the opinion that
one of ordinary skill would have been led to the subject matter of claim 53
because the disclosure including a hot-rolled steel strip as an intermediate
prior to cold-rolling is sufficient to support this ground of rejection. Cf.
Mullin, 481 F.2d at 1335-36; Johnson, 162 F.2d at 928. Because we rely on
different reasoning than explicitly set forth by the Examiner, we designate
the obviousness rejection of claim 53 over Kizu as a new ground.
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As to claim 58, reciting, inter alia, “delivering the [hot-rolled] strip
without performing a cold rolling process,” Appellants contend that a person
skilled in the art would have been led away from the subject matter of the
claim by Kizu’s teaching that cold rolling is a necessary step to achieve its
desired result of an increase of the Young’s modulus. Appeal Br. 21 (citing
Kizu, 1108). Appellants further contend that claim 58 does not merely
require avoiding cold rolling before delivery, but also after delivery. Reply
Br. 3.
Appellants’ nascent “teaching away” argument is unpersuasive that
the Examiner erred because obtaining an increased Young’s modulus is not
reflected in the limitations of claim 58, because Appellants fail to
sufficiently establish that the cold rolling is required to reach an acceptable
strip product, and because, even assuming that a cold rolling step was
required, Appellants fail to establish that a hot-rolled strip could not be
delivered prior to a subsequent cold rolling operation. DyStar Textilfarben,
464 F.3d at 1364. As to Appellants’ argument grounded on claim 58
requiring that there is no cold rolling even after delivery, it is without
persuasive merit because it is not commensurate with the plain language of
the claim and, on this record, we are directed to no basis in the Specification
for a contrary interpretation. See generally Appeal Br.; Reply Br.
As to claims 68 and 69, reciting that the structure “comprises a
bainite/bainitic ferrite matrix” and “comprises bainite/portions of globular
ferrite matrix,” respectively, Appellants contend the Examiner failed to
address these features in the Final Office Action (Appeal Br. 21-22) and that
these features are not necessarily present, i.e., not inherent, because “the
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features of claims 68 and 69 are present in some, but not all of the
exemplary embodiments” of the instant application. Reply Br. 4.
In the Answer, the Examiner relies on Kizu teaching “a steel having a
phase structure comprising martensite > 1 vol. % (preferably >10 vol. %),
bainite or retained austenite <10 vol. %, and the balance being ferrite” and,
reasoning that the ferrite in Kizu would broadly include bainitic ferrite,
determines Kizu’s amounts overlap and suggest presently claimed phase
structure. Ans. 10-11 (citing Kizu, 93-97). The Examiner further
determines that the bainitic ferrite and globular ferrite of claims 68 and 69,
respectively, would be presumed inherent. Ans. 10-11.
While Appellants’ position is well-founded as to the issue of
inherency based on composition and method of making, as discussed above
with respect to Kunio, Appellants wholly fail to address the Examiner’s fact
finding and articulated reasoning grounded on the Kizu’s disclosure of
overlapping ranges and that the remainder of ferrite would include bainitic
ferrite meeting the limitations of the claims. Because, on this record, we are
apprised of no error in the Examiner’s determination grounded on what is
disclosed in Kizu as set forth by the Examiner, we find the preponderance of
evidence supports the Examiner’s rejection. See In re Preda, 401 F.2d 825,
826 (CCPA 1968) (“[I]n considering the disclosure of a reference, it is
proper to take into account not only specific teachings of the reference but
also the inferences which one skilled in the art would reasonably be
expected to draw therefrom.”).
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DECISION
We AFFIRM the Examiner’s decision rejecting claims 32-71, but,
pursuant to 37 C.F.R. § 41.50(b), designate the rejection of claim 53 as a
NEW GROUND OF REJECTION.
Section 41.50(b) provides “[a] new ground of rejection pursuant to
this paragraph shall not be considered final for judicial review.” Section
41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. The new ground of rejection
is binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the
opinion of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
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rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED; NEW GROUND OF REJECTION
PURSUANT TO 37 C.F.R, $ 41.50(b)
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