Ex Parte Nürnberger et al

Patent Trials and Appeals Board

May 10, 2019

12865817 - (D) (P.T.A.B. May. 10, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/865,817 08/02/2010
27877 7590 05/14/2019
KENNAMETAL INC.
Intellectual Property Department
P.O. BOX231
1600 TECHNOLOGY WAY
LATROBE, PA 15650
FIRST NAMED INVENTOR
Michael Nurnberger
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
K-2626DEUS1 6365
EXAMINER
NGUYEN, PHUONG T
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
05/14/2019 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):
larry.meenan@kennametal.com
k-corp. patents@kennametal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL NURNBERGER, RUDOLF GRAU, and
HUBERT SCHWEIGER
Appeal2018-002296
Application 12/865,817
Technology Center 3700
Before JENNIFER D. BAHR, FREDERICK C. LANEY, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Nurnberger et al. ("Appellants") appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 1-10 and 13-15. 1
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Kennametal Sintec Keramik GmbH is identified as the real party in
interest. Appeal Br. 3.
Appeal2018-002296
Application 12/865,817
THE CLAIMED SUBJECT MATTER
Appellants' "invention relates to a vaporizer body." Spec. 1: 2.
Claim 1, reproduced below, is representative of the claimed subject matter.
1. An electrically conducting vaporizer body, being
resistance-heatable for vaporizing metal, the electrically
conducting vaporizer body comprising:
a vaporizing surface for vaporizing metal in a PVD-
metallization installation,
wherein the vaporizing surface comprises:
a plurality of recesses;
and surfaces outside the recesses, the outside surfaces
wetted by a molten metal bath and the outside surfaces
distributing the molten metal bath to the plurality of recesses,
wherein openings of the recesses have an area/perimeter-ratio of
greater than or equal to 1. 5 mm.
REJECTIONS
1) The Examiner rejected claims 1-8, 10, and 13-15 under 35 U.S.C.
§ I03(a) as unpatentable over Sato (US 2006/0162662 Al,
published July 27, 2006) and McJilton (US 4,811,691, issued Mar.
14, 1989).
2) The Examiner rejected claim 9 under 35 U.S.C. § I03(a) as
unpatentable over Sato, McJilton, and Ikarashi (US 2008/0245305
Al, published Oct. 9, 2008).
DISCUSSION
Rejection 1
Appellants argue claims 1-8, 10, and 13-15 as a group. Appeal Br.
5-7. We select claim 1 as representative of the group and claims 2-8, 10,
and 13-15 stand or fall with claim 1. 37 C.F.R. § 41.37 (c)(l)(iv).
2
Appeal2018-002296
Application 12/865,817
The Examiner found that Sato discloses many of the limitations of
claim 1 including a vaporizing surface 31 comprising a plurality of recesses
32A and surfaces outside the recesses. Final Act. 3. The Examiner found
that Sato "does not explicitly disclose the outside surfaces wetted by a
molten metal bath and the outside surfaces distributing the molten metal bath
to the plurality of recesses." Id. at 3--4 ( emphasis omitted). The Examiner
further found that McJilton discloses a vaporizer body with "a recess ( cavity
3 0, fig. l); and an outside surface ( upper surface of boat 12, fig. 1) wetted by
a molten metal bath and the outside surfaces distributing the molten metal
bath to the recess." Id. at 4. The Examiner concluded that it would have
been obvious to "modify the electrically conducting vaporizer body of Sato,
with an outside surface ( can be) wetted by a molten metal bath, as taught by
McJilton, in order to distribute the molten metal bath to the plurality of
recesses." Id.
Appellants contend that "Sato expressly limits vaporizer surfaces to
the channels of the crucible." Appeal Br. 5. According to Appellants, if
molten metal 30A is not restricted to the recesses (32A), "non-uniform
vaporization of the metal" will occur because molten metal on the surfaces
between the recesses would "preclude[] the radiant heat transfer" disclosed
in Sato's Fig. 4B. Id. at 5-6 (citing Sato, ,r 78, Fig. 4B). Based on the
foregoing, Appellants alternatively argue that the Examiner's rejection
would render Sato "unsuitable for use in PVD metallization installations" or
would negate "Sato' s principle of operation for uniform vaporization and
deposition." Id. at 6. Appellants further contend that McJilton fails to
"disclose or teach vaporizer surfaces outside the recesses." Id. at 6-7 (citing
McJilton, 2:32-37, Fig. 1). The Examiner responds that the recitation "a
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Appeal2018-002296
Application 12/865,817
molten metal bath and the outside surfaces distributing the molten metal bath
to the plurality of recesses" "is a statement of intended use" and "the prior
art structure is capable of performing the intended use." Ans. 5. In the
Reply Brief, Appellants do not challenge the Examiner's assertion that this
claim limitation is a statement of intended use or that Sato is capable of
performing the intended use. See Reply Br. 2--4. For the following reasons,
we sustain the rejection of claim 1.
Figure 1 of Sato is reproduced below:
Figure 1 is a perspective view illustrating a construction of a vacuum vapor
deposition apparatus. Sato, ,r 40.
4
• I
Appeal2018-002296
Application 12/865,817
Sato discloses a device heated by a plurality of electric heaters 17 that
are located, inter alia, on the side walls 23 of crucible 22A. Id. ,r,r 63---64,
78; Fig. 1. Figure 4B of Sato is reproduced below:
23
.Radiant Heat
31
30A
Figure 4B is cross-sectional view showing crucible 22A.
Sato discloses that slit grooves 32A are formed in upper surface 31 and that
upper surface 31 also comprises mound portions 3 la "between adjacent slit
grooves 32A and the like." Sato, ,r 75. Sato also discloses that dopant
material 30A is contained within slit grooves 32A. Sato, ,r 78, Figs. 3, 4B.
Figure 4B illustrates that heat, generated by electric heaters 17, is transferred
from side walls 23 to upper surface 31. Id. at Fig. 4B. Vaporization of
dopant material 30A occurs from slit grooves 32A. Id. Appellants are, thus,
correct that Sato does not disclose molten metal in contact with or vaporized
from upper surface 31. Appellants, however, do not dispute the Examiner's
assertion that the recitation that the outside surfaces of the vaporizing
surface are "wetted by a molten metal bath ... [and] distribute the molten
metal bath to the plurality of recesses" is a statement of intended use and
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Appeal2018-002296
Application 12/865,817
that Sato is capable of performing the intended use. Ans. 4--5; see Reply Br.
2--4. Therefore, we agree with the Examiner that this recitation is a
statement of intended use and not entitled to patentable weight. 2
Appellants' arguments that "[i]ntroducing molten metal on the upper
surface (31) and mound portions (31 a) ... precludes the radiant heat transfer
of FIG. 4B" renders "Sato unsuitable for use in PVD metallization" and
"negat[ es] Sato' s principle of operation" (Appeal Br. 6) are unsupported
attorney arguments. Appellants provide no evidence to support the assertion
that introducing molten metal onto upper surface 31 "precludes radiant heat
transfer." Id. To the contrary, one of ordinary skill in the art would
recognize that molten metal introduced to upper surface 31 would, like the
molten metal in slit grooves 32A, be vaporized due to the radiant heat
transfer from side wall 23 in accordance with the principle of operation of
Sato.
For all the foregoing reasons, Appellants do not apprise us of
Examiner error. Therefore, we sustain the rejection of claim 1. Claims 2-8,
10, and 13-15 fall with claim 1.
Rejection 2
Claim 9 depends from claim 1. Appeal Br. 10 (Claims App.). In
arguing for the patentability of claim 9, Appellants rely on the same
contentions as for claim 1 with the additional assertion that Ikarashi does not
cure the alleged deficiencies in the rejection of claim 1. Id. at 8. Appellants
do not dispute the Examiner's findings in the rejection of claim 9 based on
2 We agree with Appellants that McJilton does not teach "surfaces 12
outside the cavity 30 wetted by molten metal." Appeal Br. 7. However, the
lack of evidentiary support for this finding by the Examiner is immaterial to
our disposition of the Appeal of this rejection.
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Appeal2018-002296
Application 12/865,817
Ikarashi. Id. Therefore, we sustain the rejection of claim 9 for the reasons
discussed in connection with Rejection 1 and because Appellants do not
apprise us of error in the rejection of claim 9.
DECISION
The Examiner's decision rejecting claims 1-10 and 13-15 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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