Ex Parte Meyer et al

Board of Patent Appeals and Interferences

Sep 5, 2003

09660797 (B.P.A.I. Sep. 5, 2003)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte MEINERT MEYER, KLAUS KUPPERS, MANFRED ALBEDYHL
and BRUNO BOHMER
____________
Appeal No. 2003-0764
Application No. 09/660,797
____________
ON BRIEF
____________
Before WALTZ, TIMM, and PAWLIKOWSKI, Administrative Patent Judges.
WALTZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the primary examiner’s
final rejection of claims 1 and 8 through 10, which are the only
claims remaining in this application. We have jurisdiction
pursuant to 35 U.S.C. § 134.
According to appellants, the invention is directed to a method
of cooling a steel section from rolling heat, where the section has
different section parts of different masses located at a distance
from each other over a cross-section of the section (Brief, page
3). The method comprises subjecting the steel section with the
Appeal No. 2003-0764
Application No. 09/660,797
1The examiner lists “[t]he admitted prior art of the instant
disclosure, pages 2-7 of the specification” under “Prior Art of
Record” (Answer, pages 2-3, ¶(9); see also Answer, page 3, line
1). The examiner also states that the admitted prior art is
relied upon “as expressed on pages 3-6 of the specification for
example” (Answer, page 3, ¶(10)). For purposes of this appeal,
we consider these statements to be equivalent since pages 2-7 of
appellants’ specification contain the section “Description of the
Related Art” while the prior art references are actually
discussed on pages 3-7 of appellants’ specification.
2
head facing downwardly and the base facing upwardly to a series of
defined immersion procedures of a very short duration in a trough
filled with water, while determining and computing heat quantities
to be proportionally removed from the different section parts and
the quantity of cooling medium required for removing the heat
(id.). A further understanding of the invention may be gleaned
from independent claim 1, a copy of which is attached as an
Appendix to this decision.
In addition to the admitted prior art found in appellants’
specification (pages 2-7),1 the examiner relies upon Ackert et al.
(Ackert), U.S. Patent No. 4,486,248, issued Dec. 4, 1984, as
evidence of obviousness. Accordingly, the claims on appeal stand
rejected under 35 U.S.C. § 103(a) as unpatentable over the admitted
prior art found in appellants’ specification in view of Ackert
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(Answer, page 3). We reverse the examiner’s rejection essentially
for the reasons stated in the Brief and those reasons set forth
below.
OPINION
The examiner finds that the admitted prior art, as expressed
on pages 3-6 of the specification, teaches a method of cooling
steel rail stock, including the use of short duration immersion
steps for cooling steel sections with a head section facing
downwardly and a base section facing upwardly, with different
cooling rates employed for the different sections (Answer, page 3).
Therefore the examiner finds that the admitted prior art shows “all
aspects of the above claims except the use of controlling the
cooling process with a computer.” Id.
The examiner finds that Ackert teaches that it was known in
the rail heat treatment art “to employ computer controlled cooling
and regulation steps to monitor and regulate the cooling parameters
of a cooled workpiece.” From these findings, the examiner
concludes that it would have been obvious to employ the automated
computer controlled cooling and regulation steps of Ackert in the
systems of the admitted prior art in order to improve and automate
the cooling system (id., citing In re Venner, 120 USPQ 193, for the
Appeal No. 2003-0764
Application No. 09/660,797
4
holding that it would have been an obvious expedient to automate
that which has been done manually).
Appellants argue that Ackert does not compute heat quantities
to be removed by cooling for the individual section parts but
rather only at the beginning and end of the cooling system (Brief,
page 7). We agree.
The examiner construes the claims as not containing any
requirement that each individual section part “be measured and
computed individually, only that measurement equipment and a
computer program be employed.” Answer, page 4. The examiner finds
that Ackert “clearly describes determining the cooling profile to
be employed for each section of the rail to be cooled (id., citing
col. 8, ll. 22-29). The examiner reiterates that “[t]he appealed
claims do not limit the method to any particular process of
computing or determining the cooling profiles other than the [sic,
to] require that measuring equipment and a computer program be
employed” (id.). We disagree.
We determine that claim 1 on appeal clearly requires
“determining and computing heat quantities to be proportionally
removed from the different section parts in dependence on the
masses and temperatures thereof” (claim 1 on appeal, emphasis
added). The different section parts include the head, web and base
Appeal No. 2003-0764
Application No. 09/660,797
5
(specification, page 11, ll. 5-7). We also determine that the
examiner’s finding from Ackert (col. 8, ll. 22-29) is not based on
factual support from this reference. Ackert teaches that the
temperature of each “segment” of incoming rail is sensed so that
the correct number of cooling headers may be used to cool each
“segment” of rail to the desired temperature (col. 8, ll. 22-29).
However, the “segment” Ackert refers to is clearly a segment of
length, not cross-section as determined and computed for the
different section parts of the appealed claim. See Ackert, the
abstract, where each “segment of the rail length” is subjected to
cooling; col. 6, ll. 57-63, where the computer-based control system
monitors the temperature variations “within the length of any
particular rail”; and col. 7, l. 49-col. 8, l. 10, where Ackert
exemplifies the computer-based control system showing only
temperature monitoring devices for the entry and exit end of the
cooling apparatus. Although Ackert teaches implantation of
thermocouples 1 mm, 10 mm, and 20 mm below the running surface of a
rail section, these temperature sensing devices are only sensing
the temperature of the rail head (col. 5, ll. 40-55). Therefore we
determine that Ackert does not disclose or suggest the claimed
limitations discussed above.
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Application No. 09/660,797
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The examiner has also not pointed to any admitted prior art as
found in appellants’ specification to support his finding that
“different cooling rates are employed for the different sections”
(Answer, page 3), assuming that these “sections” are equivalent to
the cross-sectional “section parts” of the claimed subject matter.
For the foregoing reasons and those set forth in the Brief, we
determine that the examiner has not set forth sufficient factual
support to establish a prima facie case of obviousness. See In re
Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967)(where
the legal conclusion of obviousness is not supported by facts it
cannot stand). Accordingly, we reverse the examiner’s rejection of
the claims on appeal under 35 U.S.C. § 103(a) over the admitted
prior art as found on pages 2-7 of appellants’ specification in
view of Ackert.
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Application No. 09/660,797
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The decision of the examiner is reversed.
REVERSED
THOMAS A. WALTZ )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CATHERINE TIMM ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
BEVERLY A. PAWLIKOWSKI )
Administrative Patent Judge )
TAW/jrg
Appeal No. 2003-0764
Application No. 09/660,797
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Friedrich Kueffner
317 Madison Avenue
Suite 910
New York, NY 10017
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APPENDIX
1. A method of cooling a steel section from rolling heat,
wherein the section has different section parts of different masses
located at a distance from each other over a cross-section of the
section, the method comprising initially determining and computing
heat quantities to be proportionally removed from the different
section parts in dependence on the masses and temperatures thereof
and a quantity of cooling medium required for removing the heat by
using measuring equipment together with a computing unit by means
of a computer program, and subsequently carrying out cooling of the
different section parts in a controlled manner such that the
different section parts reach with as little time delay as possible
the transformation line Ar3/Ar1 during the decomposition of the
gamma-mixed crystal into ferrite and/or pearlite while releasing
the transformation heat.