Ex Parte Heinrich et alDownload PDFPatent Trial and Appeal BoardMay 23, 201813737149 (P.T.A.B. May. 23, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 131737,149 01109/2013 20411 7590 05/23/2018 The Linde Group 200 Somerset Corporate Blvd. Suite 7000 Bridgewater, NJ 08807 FIRST NAMED INVENTOR Peter Heinrich 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. Pl2C007 2282 EXAMINER BAREFORD, KATHERINE A ART UNIT PAPER NUMBER 1718 MAILDATE DELIVERY MODE 05/23/2018 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 PETER HEINRICH, HEINRICH KREYE, FRANK GARTNER, THOMAS KLASSEN, and WERNER KROMMER Appeal2017-003945 Application 13/737,149 Technology Center 1700 Before JEFFREY T. SMITH, CHRISTOPHER C. KENNEDY, and AVEL YN M. ROSS, Administrative Patent Judges. ROSS, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1-6 and 11-16. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In our Decision we refer to the Specification filed January 9, 2013 ("Spec."), the Final Office Action appealed from dated December 11, 2015 ("Final Act."), the Appeal Brief filed June 28, 2016 ("Appeal Br."), and the Examiner's Answer dated September 19, 2016 ("Ans."). Appeal2017-003945 Application 13/737,149 STATEMENT OF THE CASE The subject matter on appeal relates to a method for thermal spraying where the spray particles are a powdered spray material that is introduced to a hot carrier gas and at least partially melted before being sprayed through a nozzle onto a substrate. Spec. ,-r 2. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A thermal spraying method, wherein spray particles of a powdered spray material are introduced into a hot carrier gas stream, heated by the carrier gas stream and then sprayed onto the surface of a substrate by means of a spray nozzle, wherein the temperature of the spray particles upon impact onto the substrate is below the melting temperature of the spray material, characterized in that the spray particles are heated in the hot carrier gas stream upstream of a nozzle throat of the spray nozzle to a temperature that causes at least partial melting of the spray particles in that location. Appeal Br. 28 (Claims App'x). REJECTIONS The Examiner maintains the following rejections: A. Claim 15 stands rejected under 35 U.S.C. § 112 second paragraph as indefinite for failing to particularly point out and distinctly claim the subject matter the inventor regards as the invention. Final Act. 2. B. Claims 1, 3-5, 11-14, and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Oda2 in view of either Perrin3 or Oeschsle. 4 Id. at 4. 2 Oda et al., US 2009/0056620 Al, published March 5, 2009 ("Oda"). 3 Perrin et al., US 6,416,877 Bl, issued July 9, 2002 ("Perrin"). 4 Oeschsle et al., US 4,711,627, issued December 8, 1987 ("Oeschsle"). 2 Appeal2017-003945 Application 13/737,149 C. Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Oda in view of Perrin. Id. at 8. D. Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Oda in view of either Perrin or Oeschsle, and further in view of the '394 reference. 5 Id. at 9. E. Claim 15 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Oda in view of either Perrin or Oeschsle, alone or in further view of Miyamoto. 6 Id. at 10. Appellants request reversal of Rejections A-E. Appellants present argument directed to claim 1 and do not argue any claim relating to Rejection B separately from claim 1. Appellants also distinctly argue claims 2, 6, and 15 (Rejections A and C-E). Therefore, we address claims 1, 2, 6, and 15 to resolve the issues on appeal. OPINION Rejection A - Indefiniteness (claim 15) The Examiner rejects claim 15 as indefinite. Final Act. 2. According to the Examiner, "external gas heat supply" is not understood because it is unclear "what the heat supply is 'external' to." Id. Appellants do not address the merits of the Examiner's rejection and, in failing to do so, Appellants fail to identify any reversible error in that rejection. See Appeal 5 Warnes et al., EPl 398 394 Al, published March 17, 2004 ("the '394 reference"). 6 Miyamoto et al., US 2003/0185995 Al, published October 2, 2003 ("Miyamoto"). 3 Appeal2017-003945 Application 13/737,149 Br. 2-3 (proposing an amendment claim 15). We therefore summarily affirm the rejection of claim 15 as indefinite. Rejection B- Obviousness (claims 1, 3-5, 11-14, and 16) The Examiner rejects claim 1 (among others) as obvious over Oda in view of either Perrin or Oeschsle. Final Act. 3. The Examiner finds that Oda teaches nearly all aspects of the claimed method but fails to "specifically provide that the powdered spray materials is introduced and melted in a hot carrier gas stream." Id. at 4. The Examiner finds that Perrin similarly describes thermal spraying where powdered materials are supplied upstream of a nozzle and heating of the materials causes them to melt with the carrier gases. Id. The Examiner further finds that Oeschsle teaches flame spraying, a type of thermal spraying that uses powdered materials that are heated upstream from a nozzle throat to melt the materials. Id. The Examiner reasons that the skilled artisan would have found it obvious to use the powdered materials that are introduced and melted upstream of the nozzle throat in the method of Oda because "both Perrin and Oeschsle teaches that it is well known in [the] thermal spraying processes" to do so. Id. at 6. Appellants begin by arguing that none of the references teaches a partial melting of the spray material upstream of the nozzle throat. Appeal Br. 17-19. Rather, Appellants argue that Oda and Perrin heat the particles "downstream of their introduction into the nozzle" and "Oeschsle teaches that the particles can be heated upstream of their ejection from a nozzle assembly." Id. at 18. 4 Appeal2017-003945 Application 13/737,149 The Examiner, in the Answer, further explains that "upstream" means "'before' the 'nozzle throat' is reached" and "nozzle throat" means "the narrower part of the nozzle between the converging and diverging sections." Ans. 4. According to the Examiner each of Oda, Perrin, and Oeschsle describe heating the spray material to a partial melted state upstream of, or before, the nozzle throat. See Ans. 5 (citing Oda Figure 9 and illustrating melting point "m" located upstream from the converging portion of the nozzle), 7 (referencing Perrin Figure 1 and identifying combustion chamber 14 upstream of the narrowing point of the elongated nozzle), and 7-8 (referring to Oeschsle Figure 8 and pointing to combustion chamber 2 placed upstream from the nozzle throat, i.e., the narrow point between the converging and diverging outlet nozzle section). Appellants do not dispute or identify any error in the Examiner's response. Furthermore, we determine the Examiner's findings are supported by the preponderance of the evidence. Appellants also contend Oda "starts with a wire rod and not particles" and that Oda requires complete melting, not partial melting. Appeal Br. 18- 19. We are not persuaded by Appellants' arguments. "Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Rather, "the test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413, 425 (CCP A 1981 ). Here, the Examiner explains that while Oda does begin with a metallic wire rod to provide the spray material, Oda teaches the spray 5 Appeal2017-003945 Application 13/737,149 material forms particles of melted material and Perrin, or alternatively Oeschsle, describes using a powdered starting material. Ans. 6. Thus, the Examiner relies on Perrin and Oeschsle to teach a spray particles of a powdered spray material-not Oda. Final 4--5. A person of ordinary skill in the art would have recognized the suitability of utilizing powdered starting materials. Appellants have failed to show error by attacking Oda separately from the combination with either of Perrin or Oeschsle. Appellants further argue that the combination of Oda and Oeschsle results in "a spraying device where heating of the particles takes place both upstream and downstream of the nozzle ... [and] [n]either of these instances teaches or suggests that the spray particles are heated in the hot carrier gas stream [sic] upstream of the nozzle throat." Appeal Br. 19. Appellants' argument does not identify a reversible error in the Examiner's rejection. The Examiner finds that both Oda and Oeschsle describe heating the spray material upstream the nozzle throat. Ans. 5 (citing Oda Figure 9 and illustrating melting point "m" located upstream from the converging portion of the nozzle) and 7-8 (referring to Oeschsle Figure 8 and pointing to combustion chamber 2 placed upstream from the nozzle throat, i.e., the narrow point between the converging and diverging outlet nozzle section). Claim 1 does not preclude heating in both locations; the claims require only that heating to at least partial melting occurs upstream of the nozzle throat. Appeal Br. 28 (Claims App'x). And lastly, Appellants contend that Perrin and Oeschsle do not teach a nozzle throat as claimed. Appeal Br. 19. However, and as discussed above, the Examiner details where each reference includes a nozzle throat (see supra p. 4--5; Final Act. p. 4--7), i.e., the narrower part of the nozzle between 6 Appeal2017-003945 Application 13/737,149 the converging and diverging sections. See also Ans. 4--7. Appellants do not dispute these express findings. W Thus, Appellants have not identified a reversible error in the rejection and the weight of the evidence supports the Examiner's findings and conclusions that the subject matter of claims 1, 3-5, 11-14, and 16 are unpatentable over the applied prior art. Rejection C- Obviousness (claim 2) Claim 2, depending from claim 1, additionally requires "wherein the temperature to which the spray particles are heated upstream of the nozzle throat is adjusted by controlling a temperature of the carrier gas stream and/or a pressure at which the carrier gas stream is supplied to the spray nozzle." Appeal Br. 28 (Claims App'x). The Examiner rejects claim 2 as obvious over Oda in view of Perrin. Final Act. 8. The Examiner finds that Perrin further indicates that variables to adjust include gas pressure (which works to determine flame temperature) and that final temperature of powder particles is determined by flame temperature . . . [and] the flame temperature would help determine the upstream spray particle temperature, which in tum would be controlled by gas pressure, which would include carrier gas pressure. Id. at 8-9. As argued for claim 1, Appellants contend that both Oda and Perrin describe heating the particles downstream of the nozzle where the claims require that the particles are heated upstream of the nozzle throat. Appeal Br. 21. Appellants explain that the nozzle throat having a taper "is important [to] achieving the compressed and heated gas stream being accelerated onto the substrate." Id. 7 Appeal2017-003945 Application 13/737,149 For the reasons discussed above (supra pp. 4--5 and Ans. 4--7), Appellants' arguments fail to identify reversible error. There, the Examiner details that the spray particles are heated upstream of the nozzle throat in each of Oda, Perrin, and Oeschsle. Id. Further, Appellants argument regarding the import of the nozzle throat having taper, is also unpersuasive because, as the Examiner finds (Ans. 11) claim 2 does not require any particular structural limitations. Appeal Br. 28 (Claims App'x). An unclaimed limitation provides no basis to distinguish the instant claims from the prior art. See In re Self, 671F.2d1344, 1348(CCPA1982) ("[A]ppellant's arguments fail from the outset because ... they are not based on limitations appearing in the claims."). Therefore, on this record, we sustain the Examiner's rejection of claim 2. Rejection D - Obviousness (claim 6) Claim 6 depends from claim 1 and additionally recites "wherein spray particles formed from metallic materials are used and said metallic materials are selected from the group consisting of heat resistant iron-, nickel- and cobalt-based alloys." Appeal Br. 29 (Claims App'x). The Examiner rejects claim 6 as obvious over Oda in view of either Perrin or Oeschsle, and further in view of the '394 reference. Final Act. 9. The Examiner further finds the "'394 [reference] teaches that MCrAlY type metal alloys, including where Mis Ni, Co and Fe are materials that are known to be thermally sprayed using molten material." Id. The Examiner reasons that it would be obvious to the person skilled in the art to use metal alloys described in '3 94 because "these materials would be understood to be heat-resistant." Id. 8 Appeal2017-003945 Application 13/737,149 Appellants argue that the '394 reference is a cold spraying method where particles are sprayed at supersonic velocities and where the gas is not heated above the melting point of the particles such that the particles remain in a solid phase. Appeal Br. 22. Appellants contend that because the '394 reference "does not teach that the particles are partially melted and delivered to the substrate as in the claimed invention," there is no reason for the person skilled in the art to have selected the metal alloys of the '394 reference "because they want the particle to partially melt." Id. at 23. We are not persuaded by Appellants' arguments. The Examiner explains that "[w]hile [the] '394 describes using the particles for a process without melting, where solid particles impact, '394 also indicates that MCrAlYparticles ... can be used in thermal spraying with melting ... and are desirably used as protective coatings ... and thus would be a desirable material ... that would be expected to work with processes with both melting and impact of solid particles." Ans. 12 (emphasis added). In particular, we observe that the '394 reference states that "MCrAlY overlay coatings have been applied by various techniques" including thermal spraying techniques such as low pressure plasma spraying and high velocity oxygen spraying where particles are heated above their melting point prior to being sprayed onto the substrate. '394 reference, i-fi-12--4. It is well-settled that in a determination of obviousness, a reference may be relied upon for all that it would have taught or reasonably suggested to one having ordinary skill in the art, including, as here, thermal spray techniques including the MCrAlY overlay coatings of the '394 reference. Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) ("That the [prior art] discloses a multitude of effective combinations does not render 9 Appeal2017-003945 Application 13/737,149 any particular formulation less obvious."). Appellants have not identified reversible error in the Examiner's findings and conclusion. We therefore, affirm the rejection of claim 6. Rejection E - Obviousness (claim 15) Claim 15 further recites "at least one external gas heat supply selected from the group consisting of electrical resistance heater, inductive heating and plasma burner is provided to heat the carrier gas stream via which the spray particles are heated." Appeal Br. 30 (Claims App'x). The Examiner rejects claim 15 as obvious over Oda in view of either Perrin or Oeschsle, alone or in further view of Miyamoto. Final Act. 10. The Examiner finds that Oda illustrates an external heat supply that uses an inductive heating method. Id. at 10. The Examiner also finds that Miyamoto describes an induction coil to heat the carrier gas before it reaches the nozzle and "thus is external to the nozzle." Id. The Examiner reasons that it would have been obvious to modify Oda with the heater of Miyamoto in order to "help increase flying speed of the material being sprayed." Id. at 11. Appellants urge that Miyamoto teaches "[h ]eating of the material may be performed as a matter of preparing the particle for impact for appropriate coverage of the surface to be coated," i.e., to increase the speed of the particle, and does not teach heating the nozzle throat. Appeal Br. 24. Appellants also argue that the combinations of Oda/Perrin and Oda/Oeschsle both fail to "teach that the nozzle contains a nozzle throat and that the heating upstream of this nozzle throat is to cause at least partial melting of the spray particles at that location." Id. at 24--25. In particular, "[t]here is .. . no suggestion to heat a nozzle throat." Id. at 25. 10 Appeal2017-003945 Application 13/737,149 For the reasons discussed above for claim 1, we find no persuasive merit in Appellants' arguments. See supra pp. 4--5; Ans. 4--7. Oda in combination with either of Perrin or Oeschsle suggests the disputed features of claim 15, i.e., heating upstream of the nozzle throat to cause at least partial melting in the nozzle throat. Id.; see also Ans. 14. Appellants' further contention that there is no suggestion to "heat the nozzle throat" is similarly unpersuasive as it is an unclaimed limitation. Self, 671 F .2d at 1348. CONCLUSION Appellants failed to identify a reversible error in the Examiner's rejection of claim 15 under 35 U.S.C. § 112 second paragraph as indefinite. Appellants failed to identify a reversible error in the Examiner's rejection of claims 1, 3-5, 11-14, and 16 under 35 U.S.C. § 103(a) as unpatentable over Oda in view of either Perrin or Oeschsle. Appellants failed to identify a reversible error in the Examiner's rejection of claim 2 under 35 U.S.C. § 103(a) as unpatentable over Oda in view of Perrin. Appellants failed to identify a reversible error in the Examiner's rejection of claim 6 under 35 U.S.C. § 103(a) as unpatentable over Oda in view of either Perrin or Oeschsle, and further in view of the '394 reference. Appellants failed to identify a reversible error in the Examiner's rejection of claim 15 under 35 U.S.C. § 103(a) as unpatentable over Oda in view of either Perrin or Oeschsle, alone or in further view of Miyamoto. 11 Appeal2017-003945 Application 13/737,149 DECISION For the above reasons, the Examiner's rejection of claims 1---6 and 11- 16 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)(l). AFFIRMED 12 Copy with citationCopy as parenthetical citation