Ex Parte Masse et al

Patent Trial and Appeal Board

Feb 14, 2018

13151155 (P.T.A.B. Feb. 14, 2018)

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.
13/151,155 06/01/2011 Robert K. Masse AG 100600 4388
116439 7590
Joel G. Landau
Aerojet Rocketdyne
P.O. Box 7922
RLB70
Canoga Park, CA 91304
02/16/2018 EXAMINER
GOYAL, ARUN
ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
02/16/2018 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):
joel.landau@rocket.com
nicole.holieway@rocket.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT K. MASSE,
SILVANO R. SARETTO, and JUNLI LIU BOTHELL1
Appeal 2017-004909
Application 13/151,155
Technology Center 3700
Before KEN B. BARRETT, JAMES P. CALVE, and
FREDERICK C. LANEY, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Office
Action rejecting claims 1—5, 7—12, and 14—24. Appeal Br. \-A. Claims 6,
13, and 25 have been cancelled. Amendment — Request for Reconsideration,
filed July 29, 2015, 2—5. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Aerojet Rocketdyne, Inc., which is a wholly-owned subsidiary of Aerojet
Rocketdyne Holdings, Inc., is identified as the real party in interest. Appeal
Br. 1.
Appeal 2017-004909
Application 13/151,155
CLAIMED SUBJECT MATTER
Claims 1, 9, and 21 are independent. Claim 1 is shown below.
1. A gas generator, comprising:
a hot isostatic pressed carrier having a theoretical density
of at least 97%, the carrier comprising hafiiia and up to an equal
part zirconia by weight, wherein the combined hafiiia and
zirconia, when present, comprise at least 50% of the carrier by
weight; and
an active metal on a surface of the carrier.
Appeal Br. 5 (Claims Appendix).
REJECTIONS
Claims 9, 17, and 21—24 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fokema (US 2007/0184971 Al, pub. Aug. 9, 2007),
Alexander (US 2,984,576, iss. May 16, 1961), and Clarence (US 3,375,127,
iss. Mar. 26, 1968).2
Claims 1—5, 7, 8, 10-12, 14—16, 18, and 19 are rejected under 35
U.S.C. § 103(a) as unpatentable over Fokema, Alexander, Clarence, Shen
(US 2007/0093587 Al, pub. Apr. 26, 2007), and Wang (WO 97/05057, pub.
Feb. 13, 1997).3
Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Fokema, Alexander, Clarence, Ito (US 6,033,500, iss. Mar. 7, 2000),
Yamazaki (US 2006/0137786 Al, pub. June 29, 2006), and Cavalleri (US
7,685,940 Bl, pub. Mar. 30, 2010).
2 We understand claim 25 to be cancelled and the Final Action’s listing of
claim 25 in the caption (Final Act. 2) to be a typographical error.
3 We understand claim 6 to be cancelled and the Final Action’s listing of
claim 6 in the caption (Final Act. 5) to be a typographical error.
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Appeal 2017-004909
Application 13/151,155
ANALYSIS
Claims 9, 17, and 21—24
Rejected Over Fokema, Alexander, and Clarence
Appellants argue claims 9, 17, and 21—24 as a group. Appeal Br. 2—3.
We select claim 9 as representative, with claims 17 and 21—24 standing or
falling with claim 9. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Fokema teaches a gas generator as recited in
claim 9 except for the carrier having a theoretical density of at least 97%.
Final Act. 2—3. The Examiner finds that Alexander teaches a carrier density
ranging from 1% to 100% of hafnia and zirconia that overlaps the claimed
theoretical density rendering it obvious. Id. at 3. The Examiner determines
a skilled artisan would have been motivated to use hafnia and zirconia with a
theoretical density of at least 97% as Alexander teaches in Fokema’s catalyst
so the carrier can withstand high temperatures as Clarence teaches. Id.
Appellants argue that Alexander teaches ceramic powders for coating
metal surfaces, and it is unreasonable to use such powders as a catalyst
support. Appeal Br. 2. Appellants also argue that coating the surface of
Fokema’s metal catalyst with Alexander’s ceramic powder would prevent
Fokema’s catalyst from functioning by covering the catalyst. Id.
This argument is not persuasive because the Examiner is not coating
Fokema’s catalyst with Alexander’s ceramic powders. The Examiner relies
on Fokema to teach a catalyst carrier made of hafnia. Final Act. 2—3 (citing
Fokema, claim 4). The Examiner relies on Alexander to teach a catalyst
carrier made of hafnia or zirconia and also the claimed density. Id. at 3
(citing Alexander, 15:5—30). The Examiner modifies Fokema’s catalyst
carrier to have the claimed density, as Alexander teaches. Id.', Ans. 2.
3
Appeal 2017-004909
Application 13/151,155
Appellants argue that even if Alexander’s hafhia ceramic powder was
used as Fokema’s carrier, the combination would not provide a carrier with a
theoretical density of at least 97% via hot isostatic pressing. Appeal Br. 3.
This argument also is unpersuasive of error in the Examiner’s finding that
Alexander teaches catalyst carriers made of hathia or zirconia with a density
range of 1% to 100% that encompasses the claimed density and renders it
prima facie obvious. Final Act. 3; Ans. 2. Appellants have not shown error
in the Examiner’s findings that Alexander teaches such densities for hathia
and zirconia. Appeal Br. 2—3; Reply Br. 1. Nor have Appellants established
criticality or unexpected results for the claimed density of at least 97%.
Spec. 5:8-10 (“In some applications, the catalyst performance improves as
density approaches the theoretical maximum, wherein a theoretical density
of the carrier of at least 97% is preferred.'’'’) (emphasis added).
The Examiner correctly interprets the “hot isostatic pressed carrier” as
a product-by-process limitation that does not distinguish the claimed gas
generator because Alexander discloses a carrier with the same density made
by other processes. Final Act. 2; Ans. 3. The assertion that the teachings of
Fokema and Alexander would not yield a carrier with a theoretical density of
at least 97% via a hot isostatic pressing method (Appeal Br. 3; Reply Br. 1)
does not apprise us of error in the Examiner’s finding that Alexander teaches
the claimed density (Final Act. 3; Ans. 2). See In re Jung, 637 F.3d 1356,
1365 (Fed. Cir. 2011) (approving of Board’s practice as set forth in Ex Parte
Frye of requiring appellants to identity error in a rejection); Ex Parte Frye,
94 USPQ 2d 1072, 1075—76 (BPAI2010) (precedential) (a panel reviews
rejections for error based on the issues identified by an appellant).
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Appeal 2017-004909
Application 13/151,155
Appellants do not address the Examiner’s reliance on Example 13 of
Alexander, which teaches a catalyst carrier of hathia or zirconia. See Reply
Br. 1—2 (“It would not have been obvious to coat Fokema’s metal catalyst
with Alexander’s powder as it would preclude the catalyst from acting as a
catalyst.”). Alexander also uses the hathia and zirconia powder sols taught
therein to make crucibles, rods, and other well-sintered, compact products
by methods that use very high temperatures and pressures like the claimed
hot isostatic pressing. Alexander, 10:58—11:21. Appellants disclose that
known hot isostatic pressing or sintering methods can be used to achieve a
high theoretical density. Spec. 6:4—12 (incorporating hot isostatic pressing
methods disclosed in U.S. Patent Nos. 4,952,353 and 5,080,841 and noting
that sintering is an alternate method to make a hathia carrier from powdered
materials). Alexander teaches examples where the use of sintering and hot
isostatic (high heat and pressure) methods produces products with high
strength, good thermal shock resistance, and excellent stability toward
moisture. Alexander, 10:58—11:21. Alexander teaches that these methods
produce zirconia and hathia rods of greater strength than sintered rods made
from commercial zirconia and hathia. Id. at 10:74—11:5. In view of the
foregoing, Appellants’ attorney arguments, which are not evidence, do not
persuade us that Alexander’s process does not teach or suggest a hathia
carrier with a theoretical density of at least 97% as claimed.4
Thus, we sustain the rejection of claims 9, 17, and 21—24.
4 In view of Alexander’s teachings of methods of making hathia and zirconia
products similar to methods that Appellants disclose as yielding such high
theoretical densities, the Examiner had a sound basis to find that Alexander
and Fokema render obvious a carrier with such a theoretical density, and
Appellants’ conclusory, attorney arguments do not persuade us otherwise.
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Appeal 2017-004909
Application 13/151,155
Claims 1—5, 7, 8, 10—12, 14—16, 18, and 19
Rejected Over Fokema, Alexander, Clarence, Shen, and Wang
Appellants argue claims 1—5, 7, 8, 10-12, 14—16, 18, and 19 as a
group. Appeal Br. 3. We select claim 1 as representative, with claims 2—5,
7, 8, 10-12, 14—16, 18, and 19 standing or falling with claim 1.
The Examiner relies on Fokema and Alexander to teach a carrier with
a theoretical density of at least 97% as claimed. Final Act. 5. The Examiner
relies on Shen and Wang to teach carriers of equal parts zirconia and hafnia.
Id. Appellants argue that applying Alexander’s ceramic powder as a catalyst
support would destroy Fokema by coating the metal surface of the catalyst
and would not provide the claimed theoretical density. Appeal Br. 3. These
arguments are not persuasive for the same reasons as claim 9. Thus, we
sustain the rejection of claims 1—5, 7, 8, 10-12, 14—16, 18, and 19.
Claim 20
Rejected Over Fokema, Alexander,
Clarence, Ito, Yamazaki, and Cavalleri
Appellants argue that nothing in Clarence, Ito, Yamazaki, or Cavalleri
cures the shortcomings of Fokema and Alexander as to claim 9 from which
claim 20 depends. Appeal Br. 4. Because we sustain the rejection of claim
9, this argument is not persuasive, and we sustain the rejection of claim 20.
DECISION
We affirm the rejections of claims 1—5, 7—12, and 14—24.
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
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