Ex parte Koffron

Board of Patent Appeals and Interferences

Jan 25, 1999

08450271 (B.P.A.I. Jan. 25, 1999)

Application for patent filed May 25, 1995. According1
to appellant, this application is a continuation of
Application No. 08/277,374, filed July 19, 1994; which is a
reissue of Application No. 07/770,128, filed October 2, 1991;
both abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 67
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte ROBERT J. KOFFRON
________________
Appeal No. 98-0393
Application No. 08/450,2711
________________
HEARD: April 6, 1998
________________
Before KIMLIN, WEIFFENBACH and PAK, Administrative Patent
Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 98-0393
Application No. 08/450,271
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This is an appeal from the final rejection of claims 9-20
and 22. Claims 1-8 and 21, the other claims remaining in the
present application, have been allowed by the examiner. Claim
9 is illustrative:
9. A method of discharging a molten metal from a
receptacle having a discharge nozzle comprising:
opening said discharge nozzle;
inserting a tapered, uniform refractory body not a
regular tetrahedron, with a specific gravity less than the
specific gravity of the molten metal, at the level of molten
metal before said level of molten metal reaches a critical
level in the receptacle, and
maintaining the body in an upright orientation in which
said body generally conforms with vortex shape at least along
a submerged portion of the body by geometrically proportioning
the uniform refractory material of the body by shaping other
than as a regular tetrahedron so that the center of gravity is
below the center of buoyant support.
In the rejection of the appealed claims, the examiner
relies upon the following reference:
Koffron 4,601,415 July 22, 1986
Appellant's claimed invention is directed to a method of
discharging a molten metal through a nozzle of a receptacle
wherein a tapered refractory body having non-regular
tetrahedron shape is inserted at the level of the molten metal
before it reaches a critical level in the receptacle. The
Appeal No. 98-0393
Application No. 08/450,271
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refractory body is maintained in an upright orientation that
generally conforms with the shape of the vortex as the molten
metal is discharged. The refractory body is geometrically
proportioned by shaping other than as a regular tetrahedron
such that its center of gravity is below its center of buoyant
support. The refractory body acts as a vortex inhibitor which
facilitates discharging the molten metal separately from a
slag layer.
The present application is a continuation of U.S.
Application No. 08/277,374 which, in turn, is a continuation
of U.S. Application No. 07/770,128, which application formed
the basis of an appeal to this Board (Appeal No. 93-4088). In
a decision dated November 30, 1993, this Board affirmed the
examiner's rejection of the appealed claims over the same
Koffron reference presently applied. Claim 9 now on appeal
generally corresponds to claim 9 in the grandparent
application with the exceptions that the refractory body is
now defined as "not a regular tetrahedron," and geometrically
proportioning the refractory body is now defined as "by
shaping other than as a regular tetrahedron."
Appeal No. 98-0393
Application No. 08/450,271
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Appellant has presented separate arguments for
patentability for claims 15, 12 and 18. Accordingly, appealed
claims 9-11, 13, 14, 16, 17, 19, 20 and 22 stand or fall
together with the claims upon which they depend.
In re Nielson, 816 F.2d 1567, 1572,
2 USPQ2d 1525, 1528 (Fed. Cir. 1987); Ex parte Schier, 21
USPQ2d
Appeal No. 98-0393
Application No. 08/450,271
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1016, 1018-19 (Bd. Pat. App. & Int. 1991). See also 37 CFR
§ 1.192(c)(7) and (c)(8) (1996).
Appealed claims 9-11, 13-17, 19 20 and 22 stand rejected
under 35 U.S.C. § 102(b) as being anticipated by Koffron. In
addition, claims 9-11, 13-17, 19, 20 and 22 stand rejected
under 35 U.S.C. § 103 as being unpatentable over Koffron.
Claims 12 and 18 stand rejected under § 103 as being
unpatentable over Koffron in view of the admitted prior art
found in appellant's specification.
We have carefully reviewed each of appellant's arguments
for patentability, as well as the declaration evidence relied
upon in support thereof. However, we fully concur with the
examiner that the claimed subject matter is unpatentable over
the Koffron reference. Accordingly, we will sustain the
examiner's rejections.
We consider first the examiner's rejection of claims 9-
11, 13-17 and 19-22 under § 102 over Koffron. As in the
Board's opinion in the grandparent application, we find that
all material elements of the rejected claims are described by
Koffron. Specifically, it is our view that Koffron fairly
describes the claimed steps of opening the discharge nozzle,
Appeal No. 98-0393
Application No. 08/450,271
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inserting a uniform refractory body of non-regular tetrahedron
shape having a specific gravity less than the specific gravity
of the molten metal, and geometrically proportioning the
refractory body by shaping it other than as a regular
tetrahedron so that its center of gravity is below its center
of buoyant support, thereby maintaining the body in an upright
orientation which generally conforms with the shape of the
vortex. Like the vortex inhibitor of appellant, the specific
gravity of the reference inhibitor "is adjusted to buoyantly
support the body at the interface of the layer of slag and the
layer of molten metal" (compare Koffron at column 2, lines 43-
46 with appellant's specification at column 7, lines 9-11).
Also, the body of Koffron's vortex inhibitor takes on the
shape of a tapered, polygonal body having an apex that is
oriented downwardly upon insertion in the molten metal (column
2, lines 8 et seq. and Figure 2). Since both the claimed and
referenced inhibitors have a specific gravity which buoyantly
supports the inhibitor at the interface of the molten metal
and slag layers, it follows that the center of gravity of the
referenced inhibitor is below its center of buoyancy. Also,
while a tetrahedron is the preferred shape of the referenced
Appeal No. 98-0393
Application No. 08/450,271
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refractory body, Koffron expressly discloses that "a square
based pyramid body provides a greater shutdown ratio than the
tetra-hedral body of the preferred embodiment, and an
octagonal pyramid body effects a substantially greater
shutdown ratio for the flow of molten metal through the
nozzle" (column 4, lines 64 through column 5, line 1). Hence,
when making the non-tetrahedron refractory body, it follows
that Koffron necessarily performs the claimed step of
geometrically proportioning the body to position its center of
gravity below its center of buoyant support in order that its
"body generally conforms with the shape of the vortex
substantially along its entire length," as required in claim 1
of the reference. We fail to perceive any distinction between
the claimed "geometrically proportioning . . . by shaping
other than as a regular tetrahedron . . ." and geometrically
proportioning the refractory body in accordance with the
disclosure of Koffron for obtaining a square based or
octagonal pyramid body.
Appellant contends that the declarations of record
establish that when the refractory body of Koffron is not of
tetrahedral shape a weighting means must be added to the body
Appeal No. 98-0393
Application No. 08/450,271
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in order that its orientation conform with the vortex shape.
Paragraph 11 of the declaration of August 30, 1996 states:
Body shaping to conform with the shape of the vortex
as taught by my previous U.S. Patent No. 4,601,415
would inherently provide a center of gravity below a
center of buoyant support only in a limited range of
specific gravity for the regular tetrahedron shape
of the preferred embodiment in U.S. Patent No.
4,601,415.
However, the flaw in appellant's position is that the claims
presently on appeal do not preclude the weighted refractory
body of the reference. Hence, appellant's argument and
declaration evidence are not commensurate with the subject
matter within the scope of the appealed claims. Regarding
appellant's argument that the claimed relationship between
center of gravity and center of buoyant support is not
described in the reference, we adhere to the reasoning
articulated by the Board in the grandparent application, i.e.,
since the inhibitors of both appellant and Koffron have a
specific gravity which buoyantly supports the inhibitor at the
interface of the molten metal and slag layers, it follows that
the center of gravity of the reference inhibitor is below its
center of buoyancy in order to achieve the claimed feature
that the "body generally conforms with the shape of the vortex
Appeal No. 98-0393
Application No. 08/450,271
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substantially along its entire length" (claim 1 of reference).
Again, it is of no moment that the refractory body of Koffron
must be appropriately weighted and shaped in a non-tetrahedral
configuration in order to attain the disclosed operation,
since such weighted non-tetrahedral bodies are within the
scope of the appealed claims. Moreover, to the extent it can
be argued that there is some unspecified distinction between
the claimed geometrically proportioning and shaping and the
proportioning and shaping employed by Koffron, we agree with
the examiner that it would have been obvious for one of
ordinary skill in the art to determine the shape of the
refractory body that results in its center of gravity being
below its center of buoyant support such that the shape of the
body generally conforms with the shape of the vortex.
Furthermore, assuming that one of ordinary skill in the art
would not have appreciated that the non-tetrahedral bodies of
Koffron have their center of gravity below their center of
buoyant support, this relationship would have naturally ensued
from shaping a refractory body in accordance with the
teachings of Koffron.
Appeal No. 98-0393
Application No. 08/450,271
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We also agree with the examiner that it would have been
obvious for one of ordinary skill in the art to roll the
refractory body into position, as required by claims 12 and
18. In our view, it would have been obvious for one of
ordinary skill in the art to roll Koffron's specifically
disclosed octagonal pyramid body, with the understanding that
it would have been obvious to round off the eight edges of the
body to prevent damage thereto. Since rolling was admittedly
known in the art as a way of introducing spherically shaped
vortex inhibitors, it would have been obvious for one of
ordinary skill in the art to modify the octagonal pyramid body
of Koffron in the manner of appellant to facilitate rolling
the body into position.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
Appeal No. 98-0393
Application No. 08/450,271
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)
)
)
CAMERON WEIFFENBACH ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
CHUNG K. PAK )
Administrative Patent Judge )
Appeal No. 98-0393
Application No. 08/450,271
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Ronald M. Nabozny
Brooks & Kushman
1000 Town Center
Twenty-Second Floor
Southfield, MI 48075