Ex Parte Langan et al

Patent Trial and Appeal Board

Apr 12, 2016

10873411 (P.T.A.B. Apr. 12, 2016)

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.
10/873,411 06/21/2004 Timothy Langan STTI-6A CIP 4563
7590 04/13/2016
Alan G. Towner
Pietragallo, Bosick & Gordon
One Oxford Centre
301 Grant Street, 38th Floor
Pittsburgh, PA 15219
EXAMINER
SAAD, ERIN BARRY
ART UNIT PAPER NUMBER
1735
MAIL DATE DELIVERY MODE
04/13/2016 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 TIMOTHY LANGAN, W. MARK BUCHTA, and
MICHAEL A. RILEY
____________________

Appeal 2014-008045
Application 10/873,411
Technology Center 1700
____________________

Before TERRY J. OWENS, CHRISTOPHER C. KENNEDY, and DEBRA
L. DENNETT, Administrative Patent Judges.

DENNETT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1–6, 8, 10–12, and 14–33. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
Appeal 2014-008045
Application 10/873,411

2
The Invention
Appellants claim a method of making a reactive material comprising
thermally spraying reactive components of the reactive material onto a
substrate to build up a green body comprising the reactive components.
Claim 1, the sole independent clam, is illustrative:
1. A method of making a reactive material, the method
comprising thermally spraying reactive components of the reactive
material onto a substrate to build up a green body comprising the
reactive components, wherein the reactive components are heated
during the thermal spraying to a temperature below which they reach
a fully molten state, and wherein at least a portion of the reactive
components present in the green body after the thermal spraying step
are exothermically reactive with each other upon subsequent heating
of the reactive material to produce a heat of reaction of at least
1,000°C.

App. Br. (Claims App’x. 1).

The References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Wickersham US 4,783,379 Nov. 8, 1988
Ducos US 4,839,239 June 13, 1989
Holt US 5,198,188 Mar. 30, 1993
Hajaligol US 6,143,241 Nov. 7, 2000
Sundarrajan US 2001/0025783 A1 Oct. 4, 2001
Kida US 2002/0027817 A1 Mar. 7, 2002
He US 2002/0081243 A1 June 27, 2002
Rigney US 6,455,167 B1 Sept. 24, 2002
Shanker CA 2,306,9411 Oct. 27, 2001

1 The Examiner used US 2003/0138569 A1 as an English language
equivalent.
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Application 10/873,411

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The Rejections
The claims stand rejected under 35 U.S.C. § 103(a) as follows:
claims 1–3, 5, 16–25, 27, and 31–33 over Holt in view of Kida;
claims 6, 28, and 29 over Holt and Kida as applied to claims 1 and 25,
and further in view of Wickersham;
claim 8 over Holt and Kida as applied to claim 1, and further in view
of Hajaligol;
claim 10 over Holt and Kida as applied to claim 1, and further in view
of Ducos;
claims 11, 12, and 15 over Holt and Kida as applied to claim 1, and
further in view of Sundarrajan;
claim 14 over Holt, Kida, and Sundarrajan as applied to claim 12, and
further in view of He;
claim 26 over Holt and Kida as applied to claim 25, and further in
view of Shanker;
claim 30 over Holt, Kida, and Wickersham as applied to claim 29, and
further in view of Rigney.
OPINION
For all of the rejections, the dispositive issue on appeal is: Has the
Examiner committed reversible error in finding that one of ordinary skill in
the art would combine the teachings of Kida, alleged to disclose plasma
spraying reactive components on a substrate where the material is only
partially melted, with those of Holt, alleged to disclose thermally spraying
reactive components of the reactive material onto a substrate to build up a
green body wherein at least a port of the reactive components present in the
Appeal 2014-008045
Application 10/873,411

4
green body are exothermically reactive with each other upon subsequent
heating of the reactive material to produce a heat of reaction?
We determine the Examiner erred; thus, we do not sustain the
rejections.
Holt teaches a method of combustion synthesis of exoergic materials
(Holt 1:15–16; 2:60–65), and does not address whether the components
present in the green body are exothermically reactive. “Exoergic” and
“exothermic” are not interchangeable.2
Further, Holt discloses that the material is melted by plasma spraying.
Id. 3:22–23; 7:35–36; 7:50–55. Claim 1 requires the reactive components to
be heated during thermal spraying “to a temperature below which they reach
a fully molten state.” App. Br. (Claims App’x. 1) (emphasis added). In
other words, the reactive components in claim 1 are not melted, i.e., not fully
molten. The Examiner argues that the broadest reasonable interpretation of
this element requires “partially melted” (not fully molten) to read on
“melted.” Ans. 9 (“One skilled in the art, taken in its broadest reasonable
interpretation, would understand that partially melted would read on melt.”).
We disagree. Appellants have not acted as their own lexicographer here.
The broadest reasonable interpretation consistent with the specification

2 “Exothermic”: (of a chemical reaction or compound) occurring or formed
with the evolution of heat, COLLINS ENGLISH DICTIONARY,
http://search.credoreference.com/content/entry/hcengdict/exothermic_or_ex
othermal/0?id=16651905 (last visited Apr. 8, 2016); “exoergic”: (of a
nuclear reaction) occurring with evolution of energy, Id. at
http://search.credoreference.com/content/entry/hcengdict/exoergic/0?searchI
d=ca73cfbf-fd95-11e5-b126-0e811e6e1ce7&result=4 (last visited Apr. 8,
2016).

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Application 10/873,411

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would not extend to the limits urged by the Examiner, as Appellants have
distinguished in the claims or the Specification between “partially melted”
and “melted” and between “semi-molten” and “molten,” and note that “[i]n
one embodiment, the reactivity of the reactive components is controlled such
that slow heating below certain temperatures does not initiate the exothermic
reaction, thereby avoiding unwanted ignition.” App. Br. (Claims App’x. 1);
Spec. ¶¶ 19, 21. See In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990) (“[T]he
PTO must apply the broadest reasonable meaning to the claim language,
taking into account any definitions presented in the specification.”); In re
Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999) (“Although the PTO must
give claims their broadest reasonable interpretation, this interpretation must
be consistent with the one that those skilled in the art would reach.”).
The Examiner reaches to Kida for a disclosure of only partial melting
of reactive components. Ans. 3. We find the Examiner erred in combining
Kida with Holt. Nowhere does Kida state that components are reactive.
Kida teaches forming a transparent thin oxide film by sputtering semi-
molten ceramic powder on a target such as heat reflecting glasses,
antireflection films, metals and alloys (Kida Abstract, ¶¶ 2 and 10). In
contrast, Holt discloses production of a dense refractory material through the
application of a dense molten plasma spray, followed by ignition of the
coated green body. Holt 1:19–22; 3:6–12; 3:53–61.
The Examiner contends that “it would have been obvious to heat the
material to a temperature that would provide the material with properties
required to create an ideal surface coating without damaging or vaporizing
the spray material” (Ans. 3), but provides no explanation of how that
conclusion would have been apparent from the references.
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The teachings of the references are at odds with each other, and the
Examiner has not explained why one of ordinary skill in the art would have
a reasonable expectation of success in substituting the partially molten
ceramic powder for forming a transparent thin oxide film of Kida with the
teachings of Holt of production of a dense refractory material.
The Examiner does not rely upon the additional references and
combinations of references for any disclosure that remedies the deficiency in
the references applied to the independent claim.

DECISION/ORDER
The rejections under 35 U.S.C. § 103(a) of the Examiner’s rejection of
(1) claims 1–3, 5, 16–25, 27, and 31–33 over Holt in view of Kida; and (2)
claims 6, 8, 10–12, 14, 15, 26 and 28–30 over Holt and Kida in view of the
applied secondary references are reversed.
It is ordered that the Examiner’s decision is reversed.

REVERSED