10260121 (B.P.A.I. Oct. 14, 2010)

Ex Parte Landingham

Board of Patent Appeals and InterferencesOct 14, 2010

10260121 (B.P.A.I. Oct. 14, 2010)

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. 10/260,121 09/27/2002 Richard L. Landingham IL-9328B 9626 24981 7590 10/15/2010 Lawrence Livermore National Security, LLC LAWRENCE LIVERMORE NATIONAL LABORATORY PO BOX 808, L-703 LIVERMORE, CA 94551-0808 EXAMINER ROE, JESSEE RANDALL ART UNIT PAPER NUMBER 1733 MAIL DATE DELIVERY MODE 10/15/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte RICHARD L. LANDINGHAM ____________ Appeal 2010-001127 Application 10/260,121 Technology Center 1700 ____________ Before EDWARD C. KIMLIN, CHUNG K. PAK, and JEFFREY T. SMITH, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL1 This is an appeal from the final rejection of claims 1-5, 8-11, and 13- 16. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6. Claim 1 is illustrative: 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-001127 Application 10/260,121 2 1. A process for fabrication of cermets comprising of a ceramic powder infiltrated with a molten metal or metal alloy, said process comprising: (a) producing a ceramic preform matrix of a desired shape having a porosity from 30% to less than 50% by presintering a predetermined ceramic powder, said ceramic powder further comprising particles of the same sizes from greater than 10μ to about 50μ and selected from the group consisting of any one or a mixture of aluminum oxide, aluminum nitride, aluminum boride, aluminum silicate, hafnium oxide, hafnium nitride, hafnium boride, hafnium silicate, vanadium oxide, vanadium nitride, vanadium boride, vanadium silicate, beryllium oxide, beryllium nitride, beryllium borate and beryllium silicate, said particle sizes and said group selected in combination so that said particles remain of the same size following presintering; and (b) molten metal infiltrating said ceramic preform matrix of step (a) with a metal selected from the group consisting of titanium, nickel, magnesium, calcium, aluminum, lithium, copper, iron, silicon, manganese, cobalt, molybdenum, niobium, zirconium, and their combination wherein said selected metal has a melting point lower than a presintering temperature of said ceramic powder of step (a) to enable a molten metal or a molten metal alloy infiltration into said ceramic preform matrix at a temperature lower than said presintering temperature. The Examiner relies upon the following references as evidence of obviousness: Coble 3,026,210 Mar. 20, 1962 Laska 4,150,317 Apr. 17, 1979 Mazur 5,458,705 Oct. 17, 1995 Ritland 5,676,907 Oct. 14, 1997 David R. Lide, "CRC Handbook of Chemistry and Physics," 87th Ed., pp. 12-196-12-197 (2006-2007), http://www.hbcpnetbase.com Appellant's claimed invention is directed to a process for fabricating cermets comprising a ceramic powder that is infiltrated with a molten metal Appeal 2010-001127 Application 10/260,121 3 or metal alloy. The process entails producing a ceramic preform matrix with a ceramic powder selected from the recited group of compounds, wherein the specific compound and its particle sizes are selected, in combination, in order that the particles remain the same size following a presintering step. Appealed claims 1-5 and 8-11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ritland in view of Laska and Coble. Claims 11 and 13-16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the stated combination of references further in view of Mazur. We have thoroughly reviewed the respective positions of the Appellant and the Examiner. In so doing, we agree with Appellant that the prior art cited by the Examiner fails to establish the obviousness of the claimed subject matter. Accordingly, we will not sustain the Examiner's rejections. There is no dispute that Ritland, like Appellant, discloses a process for forming a cermet by sintering a ceramic preform and infiltrating the preform with a metal, such as copper, that has a melting point lower than the presintering temperature. As recognized by the Examiner, Ritland does not disclose that the combination of ceramic powder and its particle sizes are selected such that the particle size remains the same after sintering. To remedy this deficiency in Ritland, the Examiner cites Laska and Coble for the obviousness of adding up to 0.5 % magnesia to the ceramic powder prior to sintering in order to prevent grain growth and the cracking associated therewith. The flaw in the Examiner's reasoning is that claim 1 on appeal does not require the addition of magnesia, and the Examiner does not explain how such an addition of magnesia would have rendered obvious to one of Appeal 2010-001127 Application 10/260,121 4 ordinary skill in the art the claimed selection of the combination of ceramic powder and its particle sizes. Even if it were obvious to add magnesia to the cermet composition of Ritland, such does not establish the obviousness of the claimed process. Furthermore, as pointed out by Appellant, Laska and Coble are directed to making transparent alumina, not opaque cermets of the type disclosed by Ritland and presently claimed. Coble teaches that the addition of magnesia to ceramic compositions effectively prevent abnormal grain growth without reducing transparency (col. 4, ll. 8-13), and the Examiner has not refuted Appellant's argument that one of ordinary skill in the art would have found no suggestion in Laska and Coble to add magnesia to a cermet composition for which transparency is not a concern. The Examiner appears to argue that Appellant's finding of another reason for adding magnesia to the composition cannot be the basis for patentability (See Ans. 9, last ¶). However, as noted above, appealed claim 1 does not call for the addition of magnesia to the composition. The Examiner's additional citation of Mazur for the rejection of claims 11 and 13-16 does not remedy the basic deficiency of the combination of Ritland, Laska, and Coble set forth above. In conclusion, based on the foregoing, we are constrained to reverse the Examiner's rejections. REVERSED cam Appeal 2010-001127 Application 10/260,121 5 LAWRENCE LIVERMORE NAT'L SECURITY, LLC LAWRENCE LIVERMORE NAT'L LABS. P O BOX 808, L-703 LIVERMORE, CA 94551-0808