Ex Parte Peterson et al

Board of Patent Appeals and Interferences

Feb 29, 2012

11060937 (B.P.A.I. Feb. 29, 2012)

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.
11/060,937 02/18/2005 Artie Gene Peterson JR. 58113-343759 3167
23342 7590 03/01/2012
KILPATRICK TOWNSEND & STOCKTON LLP
1001 WEST FOURTH STREET
WINSTON-SALEM, NC 27101
EXAMINER
ELVE, MARIA ALEXANDRA
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
03/01/2012 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 ARTIE GENE PETERSON JR.,
DAVID WAYNE GANDY, GREGORY J. FREDERICK,
JAN T. STOVER and RAMASWAMY VISWANATHAN
________________

Appeal 2009-012793
Application 11/060,937
Technology Center 3700
________________

Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY and
STEFAN STAICOVICI, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s 2
final decision rejecting claims 22-29, 33, 34 and 36-60. The Examiner3

1 The Appellants identify the real party in interest as Electric Power
Research Institute, Inc. of Palo Alto, California.
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Application No. 11/060,937

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rejects claims 22-25 under 35 U.S.C. § 103(a) as being unpatentable over 1
Kelly (US 5,873,703, issued Feb. 23, 1999); and claims 26-29, 33, 34 and 2
36-60 under § 103(a) as being unpatentable over Kelly and Snyder (US 3
4,750,944, issued Jun. 14, 1988). Claims 1-21, 30-32 and 35 are cancelled. 4
We have jurisdiction under 35 U.S.C. § 6(b). 5
We REVERSE. Pursuant to our authority under 37 C.F.R. § 41.50(b), 6
we enter NEW GROUNDS OF REJECTION against claim 22 under 7
§ 103(a) as being unpatentable over Snyder and Kelly. 8
Claim 22 is the sole independent claim on appeal: 9
22. A method of repairing a metallic 10
component comprising: 11
subjecting a metallic component to a first 12
hot isostatic processing operation; 13
welding the metallic component with a first 14
weld filler using gas tungsten arc welding; 15
sealing a micro-crack on the surface of the 16
metallic component with a second weld filler; and 17
exposing the metallic component to a second 18
hot isostatic processing operation. 19
Kelly describes a procedure for repairing a turbine blade 20 fabricated 20
from a gamma titanium aluminide alloy base metal. (Kelly, col. 3, ll. 18-21 21
and col. 2, ll. 25-27). The method includes the steps of welding the turbine 22
blade 20 with a gamma titanium aluminide alloy weld filler using gas 23
tungsten arc welding (Kelly, col. 4, ll. 27-29 and 34-38); sealing micro-24
cracks formed on the surface of the turbine blade 20 during welding with a 25
brazing filler including titanium, copper, nickel and a binder (Kelly, col. 4, 26
ll. 44-45 and 61-67; id., col. 5, ll. 3-6); and exposing the turbine blade 20 to 27
a hot isostatic processing operation (Kelly, col. 5, ll. 55-56). 28
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Application No. 11/060,937

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With respect to the hot isostatic processing operation, Kelly teaches 1
that: 2
To reduce or, ideally, completely close the 3
interior porosity 32, the article is hot isostatically 4
pressed, numeral 50. The hot isostatic pressing is 5
preferably performed after the steps 42 [welding 6
the turbine blade 20 with a gamma titanium 7
aluminide alloy weld filler], 44 [selecting a brazing 8
filler metal], 46 [sealing micro-cracks on the 9
surface with the brazing filler metal], and 48 [heat 10
treatment], inasmuch as the surface-connected 11
cracks 64, if they reach and connect with the 12
interior porosity 32, will inhibit the effectiveness 13
of the hot isostatic pressing operation. By filling 14
the surface-connected cracks 64 with the brazing 15
filler metal, the subsequent hot isostatic pressing is 16
rendered more effective. 17
(Kelly, col. 5, ll. 55-63; see also id., fig. 3). 18
The Examiner finds that this passage might be interpreted as 19
suggesting a hot isostatic processing operation might be performed after 20
each of steps 42-48. (Ans. 5-6; see also Ans. 3). Nevertheless, it is at least 21
as reasonable to interpret this passage as a whole as suggesting that a single 22
hot isostatic pressing be performed only after micro-cracks on the surface of 23
the turbine blade 20 are sealed with the brazing filler metal. (See Br. 6). 24
Kelly does not necessarily teach the possibility of performing a hot isostatic 25
processing operation after each process step in Kelly’s repair method. 26
The Examiner also reasons that one of ordinary skill in the art might 27
have exposed the turbine blade 20 to a second hot isostatic processing 28
operation if the first hot isostatic processing step failed to seal the surface 29
cracks or porosity. (Ans. 6). Kelly fails to describe performing more than 30
one hot isostatic processing operation during a single repair of the turbine 31
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blade 20, however. Without additional reasoning to explain why it would 1
have been obvious, as opposed to merely possible, for one of ordinary skill 2
in the art to perform first and second hot isostatic processing operations 3
during a single repair, we are not persuaded that the subject matter of claim 4
22 or its dependent claims would have been obvious. For this reason, we do 5
not sustain the rejection of claims 22-25 under § 103(a) as being 6
unpatentable over Kelly. 7
Turning to the rejection of the remaining claims, Snyder teaches that it 8
was known to cast parts from nickel-based superalloy material and then 9
perform a hot isostatic processing operation to enhance the properties of the 10
casting. (Snyder, col. 1, ll. 19-38). Snyder also teaches that it is desirable to 11
use gas tungsten arc welding to repair defects in the casting which remain 12
after the hot isostatic processing operation. (Snyder, col. 2, ll. 1-13). The 13
Appellants correctly point out that Snyder teaches only one hot isostatic 14
processing operation during the fabrication of a cast part. (Br. 10). 15
The Examiner does not rely on the teachings of Snyder to remedy the 16
deficiencies in the teachings of Kelly with respect to the use of first and 17
second hot isostatic processing operations during a single turbine blade 18
repair. (See Ans. 10). Neither does the Examiner provide another rationale 19
by which those deficiencies might be overcome for purposes of the rejection 20
of claims 26-29, 33, 34 and 36-60. We do not sustain the rejection of claims 21
26-29, 33, 34 and 36-60 under § 103(a) as being unpatentable over Kelly and 22
Snyder. 23
Nevertheless, we enter new grounds of rejection against claim 22 24
under § 103(a) as being unpatentable over Snyder and Kelly. Snyder teaches 25
a process for fabricating a cast metal article from nickel-based superalloy 26
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material. That process includes a method for repairing porosity and casting 1
defects in the cast metal article. More specifically, Snyder teaches a method 2
including the step of subjecting the cast metal article to a first hot isostatic 3
processing operation and then performing a weld repair on the surface of the 4
article. (Snyder, col. 1, ll. 19-38 and col. 2, ll. 1-13). 5
Kelly describes a procedure for performing a weld repair on a metal 6
article 20 which includes the step 42 of welding the metal article with a weld 7
filler having a composition similar to the base metal 62 making up the cast 8
metal article 20 itself. (Kelly, col. 4, ll. 27-29 and 34-38). Kelly, like 9
Snyder, teaches performing the weld repair using gas tungsten arc welding. 10
(Compare id. with Snyder, col. 2, ll. 10-13). Kelly additionally teaches that 11
the welding step 42 may cause the formation of surface-connected micro-12
cracks 64 in the surface of the metal article 20 which cannot be readily 13
repaired by further welding. (Kelly, col. 4, ll. 44-53). To address this, Kelly 14
describes a step 46 of sealing the micro-cracks on the surface of the metallic 15
article 20 with a brazing filler metal. (Kelly, col. 5, ll. 3-6). The brazing 16
filler metal is a “second weld filler” as that term is used in claim 22. 17
Finally, Kelly describes performing a hot isostatic processing 18
operation 50 after sealing the micro-cracks in step 46 to close any remaining 19
porosity. Kelly teaches that this hot isostatic processing operation 50 is best 20
performed after any surface-connected cracks 64 are sealed, since surface-21
connected cracks 64 reaching and connecting with the internal porosity 32 22
may inhibit the hot isostatic processing operation 50. (Kelly, col. 5, ll. 55-23
63). 24
One of ordinary skill in the art would have had reason to improve 25
Snyder’s method by subjecting a cast metallic component to a first hot 26
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isostatic processing operation and then adopting Kelly’s steps of welding the 1
cast metal part with a first weld filler using gas tungsten arc welding; sealing 2
micro-cracks formed on the surface of the cast metal part during the welding 3
step with a “second weld filler;” and exposing the metallic component to a 4
second hot isostatic processing operation to address any remaining cracks or 5
porosity. The reason for adopting these steps would have been to seal the 6
micro-cracks which formed in the surface of the cast metal part during the 7
welding process and to better close any porosity remaining in the metallic 8
component after the welding and sealing steps. In view of this reasoning, 9
the subject matter of claim 22 would have been obvious from the teachings 10
of Snyder and Kelly. 11
12
DECISION 13
We REVERSE the Examiner’s decision rejecting claims 22-29, 33, 34 14
and 36-60. 15
In addition, we enter NEW GROUNDS OF REJECTION against 16
claim 22 under § 103(a) as being unpatentable over Snyder and Kelly. 17
Section 41.50(b) provides “[a] new ground of rejection pursuant to this 18
paragraph shall not be considered final for judicial review.” 19
Section 41.50(b) also provides that Appellant, WITHIN TWO 20
MONTHS FROM THE DATE OF THE DECISION, must exercise one of 21
the following two options with respect to the new grounds of rejection to 22
avoid termination of the appeal as to the rejected claims: 23
(1) Reopen prosecution. Submit an 24
appropriate amendment of the claims so rejected or 25
new evidence relating to the claims so rejected, or 26
both, and have the matter reconsidered by the 27
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examiner, in which event the proceeding will be 1
remanded to the examiner . . . 2
(2) Request rehearing. Request that the 3
proceeding be reheard under § 41.52 by the Board 4
upon the same record . . . 5
No time period for taking any subsequent action in connection with 6
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2011). 7
8
REVERSED; 37 C.F.R. § 41.50(b) 9
10
11
12
Klh 13