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Patent Trials and Appeals Board

Oct 21, 2019

14384452 - (D) (P.T.A.B. Oct. 21, 2019)

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.
14/384,452 09/11/2014 Karl-Hermann Richter 6570-P50172 6234
13897 7590 10/21/2019
Abel Schillinger, LLP
8911 N. Capital of Texas Hwy
Bldg 4, Suite 4200
Austin, TX 78759
EXAMINER
NORTON, JOHN J
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
10/21/2019 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):
hmuensterer@abel-ip.com
mail@Abel-IP.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KARL-HERMANN RICHTER and
HERBERT HANRIEDER
____________________

Appeal 2019-002988
Application 14/384,4521
Technology Center 3700
____________________

Before ANTON W. FETTING, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s rejection of claims 11–18, 20–26, and 31–35. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. According to Appellant, the real party in interest is MTU
Aero Engines AG. Appeal Br. 3.
Appeal 2019-002988
Application 14/384,452

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According to Appellant, the “invention relates to a method for
producing low-pressure turbine blades from titanium aluminide materials.”
Spec. 1, ll. 8–9. Below, we reproduce independent claim 11 as
representative of the appealed claims.
11. A method for producing a low-pressure turbine
blade from a TiAl material by selective laser melting, wherein
the method comprises preheating, during production by selective
laser melting, an already partially produced low-pressure turbine
blade by inductive heating, and carrying out the selective laser
melting under an atmosphere of shielding gas contaminated with
not more than 10 ppm of each of oxygen, nitrogen and water
vapor.

REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. Claims 13, 24, and 35 under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and
distinctly claim the subject matter Appellant regards as the
invention;
II. Claims 11–14, 17, 21, 22, 24, 25, 32, and 33 under
35 U.S.C. § 103(a) as unpatentable over Richter et al.
(US 2013/0143068 A1, pub. June 6, 2013) (hereinafter
“Richter”) and Das et al. (US 2002/0015654 A1, pub. Feb. 7,
2002) (hereinafter “Das”);
III. Claims 15, 16, and 26 under 35 U.S.C. § 103(a) as unpatentable
over Richter, Das, and Yamazaki et al. (US 6,835,675 B2, iss.
Dec. 28, 2004) (hereinafter “Yamazaki”);
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IV. Claim 18 under 35 U.S.C. § 103(a) as unpatentable over
Richter, Das, and Koehl et al. (US 2010/0310407 A1, pub.
Dec. 9, 2010) (hereinafter “Koehl”);
V. Claims 20 and 31 under 35 U.S.C. § 103(a) as unpatentable
over Richter, Das, Yamazaki, and Russo et al.
(US 7,371,428 B2, iss. May 13, 2008) (hereinafter “Russo”);
and
VI. Claims 23, 34, and 35 under 35 U.S.C. § 103(a) as unpatentable
over Richter, Das, and Peterson, Jr., et al. (US 6,364,971 B1,
iss. Apr. 2, 2002) (hereinafter “Peterson”).

ANALYSIS
Rejection I—Rejection of claims 13, 24, and 35 as indefinite
The Examiner rejects dependent claim 13 because the claim
recites “the shielding gas is purified upon, or immediately before,
introduction into a process space for the selective laser
melting[.]” . . . The term “immediately before” i[s] a relative
term which renders the claim indefinite. The term “immediately
before” is not defined by the claim, the [S]pecification does not
provide a standard for ascertaining the requisite degree, and one
of ordinary skill in the art would not be reasonably apprised of
the scope of the invention.
Final Action 3 (citation omitted). In response, Appellant argues that “it is
not seen that one of ordinary skill in the art would have any problems to
understand what purification of a shielding gas immediately before its
introduction into a process space (for selective laser sintering) means.
Claim 13 simply means what it recites.” Appeal Br. 6–7. This argument
does not sufficiently point out why Appellant believes the Examiner errs.
Thus, we sustain the Examiner’s indefiniteness rejection of claim 13.
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Application 14/384,452

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Further, the Examiner rejects dependent claims 24 and 35 because
each of these claims “recite[s] that ‘the low-pressure turbine blade is not
subjected to any further post-treatment[.]’ . . . The limitation renders each
[of these] claim[s] indefinite because one of ordinary skill in the art would
not be apprised of what would constitute ‘treatment’ or ‘post-treatment.’”
Final Action 3. In response, Appellant argues that “these claims already
recite an example of a ‘post-treatment’[;] i.e., a surface treatment by
polishing. In any event, claim 24 also recites that the surface treatment by
polishing is the only post-treatment, wherefore it does not have to be
speculated what other post-treatments [to which] the produced turbine blade
may or can be subjected.” Appeal Br. 7 (underlining omitted). Appellant’s
argument does not persuade us that the Examiner errs in determining that the
claims are indefinite, because we agree with the Examiner that despite the
indication that polishing is a post-treatment, “one of ordinary skill . . . would
not be apprised [whether any other particular action] . . . would [or would
not] constitute . . . ‘post-treatment.”” Thus, we sustain the Examiner’s
indefiniteness rejection of claims 24 and 35.

Rejection II—Rejection of claims 11–14, 17, 21, 22, 24, 25, 32, and 33
as unpatentable over Richter and Das
As set forth above, independent claim 11 recites the following:
11. A method for producing a low-pressure turbine
blade from a TiAl material by selective laser melting, wherein
the method comprises preheating, during production by selective
laser melting, an already partially produced low-pressure turbine
blade by inductive heating, and carrying out the selective laser
melting under an atmosphere of shielding gas contaminated with
not more than 10 ppm of each of oxygen, nitrogen and water
vapor.
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Application 14/384,452

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Appeal Br., Claims App. (emphasis added). The Examiner proposes
modifying Richter’s laser melting, based on Das’s disclosure of laser
sintering under an atmosphere of shielding gas contaminated with not more
than 5 ppm of each of oxygen, nitrogen and water vapor. Answer 4.
According to the Examiner, “Das clearly teach[es] that [the formation of]
oxide films [is] . . . undesirable.” Id. at 10. Because Das discloses that
using a shielding gas with less contaminants results in laser-sintered surfaces
with less oxide film formation (Das ¶ 29), “the Examiner’s position is that
the utility of a [purer] shielding gas is well recognized in the art . . ., and that
the importance of the purity of the gas is both supplied by Das itself and i[s]
also to some degree self-evident.” Id.
Appellant argues that the Examiner errs in proposing to modify
Richter’s laser melting method to use the shielding gas Das uses during a
laser sintering method. Appeal Br. 8–11. In particular, Appellant argues
that because of the differences between the two methods, “one of ordinary
skill . . . would not be motivated to combine the disclosures of R[ichter] and
D[as], let alone in the way envisioned by the Examiner.” Id. at 8. Appellant
points out numerous, specific differences between Richter’s laser melting
and Das’s laser sintering methods. For example, Richter’s laser melting
“method . . . appears to be conducted at ambient pressure,” while Das’s laser
sintering “method . . . employs (high) vacuum.” Id. (underlining omitted).
Richter “involves the use of TiAl materials (powders),” while Das “does not
even mention a TiAl material as a possible material.” Id. at 9. Importantly,
Appellant points out (id. at 10) that Richter does not appear to be concerned
with impurities—Richter’s paragraph 14 discloses that “it is irrelevant for
materials [that] ‘consist of’ titanium aluminide if they contain impurities.”
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Application 14/384,452

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Richter ¶ 14. Richter does not disclose anything about the purity of the inert
gas. Appeal Br. 10. In fact, based on our review of Richter, Richter does
not appear to disclose anything related to oxide film formation.
Thus, on this record, the Examiner does not support adequately that
because Das discloses during laser sintering the formation of an oxide film
when using a contaminated shielding gas and the desirability of avoiding
forming an oxide film, that Das or Richter recognizes either that Richter’s
laser melting method is susceptible to the formation of an oxide film when
using a contaminated shielding gas, or that it would be desirable to avoid the
formation of an oxide film in Richter’s laser melting method. Thus, the
Examiner does not provide a teaching, suggestion, or motivation, or a
rational reason, to modify Richter based on Das’s disclosure.
Based on the foregoing, we do not sustain the Examiner’s obviousness
rejection of independent claim 11. Inasmuch as claim 25 includes a similar
recitation as claim 11, and the Examiner rejects claim 25 for reasons
substantially similar to those discussed above regarding claim 11, we also do
not sustain the Examiner’s obviousness rejection of claim 25. Further, we
do not sustain the Examiner’s rejection of claims 12–14, 17, 21, 22, 24, 32,
and 33 that depend from, and the Examiner rejects with, claims 11 and 25.

Rejections III–VI—Rejections of claims 15, 16, 18, 20, 23, 26, 31, 34,
and 35 as unpatentable over combinations including Richter, Das,
Yamazaki, Koehl, Russo, and Peterson
Claims 15, 16, 18, 20, 23, 26, 31, 34, and 35 depend from independent
claims 11 and 25. Inasmuch as we do not sustain the independent claims’
rejection, and the Examiner does not rely on any of Yamazaki, Koehl,
Russo, and Peterson to disclose anything that would remedy the above-
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discussed deficiency in the independent claims’ rejection, we also do not
sustain any of the rejections of these dependent claims.

CONCLUSION
We AFFIRM the Examiner’s indefiniteness rejections of claims 13,
24, and 35.
We REVERSE the Examiner’s obviousness rejections of claims 11–
18, 20–26, and 31–35.
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
13, 24, 35 112, second
paragraph
13, 24,
35

11–14, 17, 21,
22, 24, 25, 32,
33
103(a) Richter,
Das
11–14, 17, 21,
22, 24, 25, 32,
33
15, 16, 26 103(a) Richter,
Das,
Yamazaki
15, 16, 26
18 103(a) Richter,
Das,
Koehl
18
20, 31 103(a) Richter,
Das,
Russo
20, 31
23, 34, 35 103(a) Richter,
Das,
Peterson
23, 34, 35
Overall Outcome 13, 24,
35
11, 12, 14–18,
20–23, 25, 26,
31–34
Appeal 2019-002988
Application 14/384,452

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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.
§ 41.50(f).

AFFIRMED IN PART