Ex Parte Holverson et al

Patent Trial and Appeal BoardAug 23, 2017

13916676 (P.T.A.B. Aug. 23, 2017)

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. 13/916,676 06/13/2013 Todd E. Holverson ITW 14113.03 4629 23721 7590 08/25/2017 GEORGE R. CORRIGAN CORRIGAN LAW OFFICE 2168 COLLADAY POINT DRIVE STOUGHTON, WI53589 EXAMINER PAIK, SANG YEOP ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 08/25/2017 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): george.corrigan@corrigan.pro gcorrigan@new.rr.com kari.brekke@corrigan.pro PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TODD E. HOLVERSON, JAMES L. UECKER, ROBERT R. DAVIDSON, and RICHARD M. HUTCHISON Appeal 2015-007950 Application 13/916,676 Technology Center 3700 Before EDWARD A. BROWN, ARTHUR M. PESLAK, and SEAN P. O’HANLON, Administrative Patent Judges. O’HANLON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Todd E. Holverson et al. (Appellants)1 appeal under 35 U.S.C. § 134 from the Examiner’s final decision rejecting claims 57—65.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 The Appeal Brief identifies Illinois Tool Works Inc. as the real party in interest. Appeal Br. 3. 2 Claims 1—55 are canceled, and claim 56 has been allowed. Id. at 5. Appeal 2015-007950 Application 13/916,676 SUMMARY OF THE DECISION We AFFIRM. SUMMARY OF THE INVENTION Appellants’ disclosure relates to the start of a pulse welding process. Spec. 1:3—4. Claim 57, reproduced below from page 12 (Claims Appendix) of the Appeal Brief, is illustrative of the claimed subject matter: 57. A method of pulse welding process, comprising providing pulse type welding power and in the event that a short occurs, reducing a welding current prior to the short clearing, thereby reducing spatter. REJECTIONS Claims 57—59, 62, and 63 stand rejected under 35 U.S.C. § 102(a) as being anticipated by Stava (US 6,501,049 B2, issued Dec. 31, 2002). Claims 57, 58, 62, and 65 stand rejected under 35 U.S.C. § 102(a) as being anticipated by Parks (US 4,954,691, issued Sept. 4, 1990). Claims 59 and 63 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Parks. Claims 60, 61, and 64 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over either of Stava and Parks in combination with Geng (US 2001/0035399 Al, published Nov. 1, 2001). ANALYSIS Claim Construction Appellants assert that the “claims are patentable because the prior art does not show reducing the current prior to a short circuit while pulse welding. Independent claims 57 and 62 both require that the current be 2 Appeal 2015-007950 Application 13/916,676 reduced prior to a short circuit while pulse welding.'” Appeal Br. 9 (emphases added); see also Reply Br. 1—3 (discussing “undesired” short circuits Appellants allege to be avoided by the claimed methods). We disagree with Appellants’ proposed construction of the independent claims. During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification. In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Appellants’ Specification “relates to the start of a pulse welding process,” which Appellants describe as being “one of the more challenging aspects of pulse welding.” Spec. 1:3—4, 11—12. The disclosed starting process “provides for starting the pulse welding process by providing a constant current (CC) type power output to initiate the arc, followed by a constant voltage (CV) type power to maintain the arc, and then transitioning to a pulse type power to perform the pulse process.” Id. at 3:30-33. The only disclosure of determining that a short circuit is imminent is during the initial constant current power mode, which is used to initiate the arc and remains the active power mode for a fixed period of time thereafter before transitioning to the constant voltage power mode. Id. at 5:22—26, 6:6—7. One alternative for triggering the transition from the constant current power mode to the constant voltage power mode “provides for sensing dP/dt to sense when the short (that exist[s] prior to the arc being formed) is about 3 Appeal 2015-007950 Application 13/916,676 to break and then reduce the current so as to avoid a flare up or spatter.” Id. at 6:1—3. The constant voltage power mode is maintained for some period of time before transitioning to the pulse power mode and starting the pulse welding process. Id. at 6:10-21. Thus, the only disclosure of reducing the current prior to a short circuit is during the constant current power mode before the pulse welding process begins. Appellants’ suggested construction that weld current is reduced prior to a short circuit while pulse welding is not supported by or consistent with the Specification. Accordingly, we construe the claims as requiring the step of reducing weld current prior to a short circuit clearing and the step of providing pulse type welding power, but not requiring these steps to take place simultaneously. We further note that independent claim 62 expressly requires the step of providing pulse type welding power to be performed after reducing the welding output current. See Appeal Br. 12—13 (Claims App.). Anticipation Based on Stava Appellants argue claims 57—59, 62, and 63 together. Appeal Br. 9-10. We select claim 57 as representative. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Stava discloses all of the elements of claim 57. Final Act. 2—3. Appellants argue that in pulse welding, the “welding current. . . alternates between a background current and a higher peak current.” Appeal Br. 9 (citing Spec. 1:1—4). Appellants also argue that no short-circuiting takes place with pulse welding. Id. (citing a Wikipedia article entitled “Gas Metal Arc Welding” that was submitted in the Evidence Appendix of the Appeal Brief). Appellants assert that Stava discloses “a 4 Appeal 2015-007950 Application 13/916,676 short circuit welding process,” and “[sjhort circuit welding is one where the arc is repeatedly extinguished and re-ignited.” Id. at 10. Thus, Appellants argue, “[bjecause pulse welding is a process that is distinct and different from the prior art short circuit welding, the 102 rejections should be overturned.” Id. We are not persuaded by Appellants’ arguments. As correctly noted by the Examiner (see Final Act. 5) and Appellants (see Appeal Br. 9), the Specification defines pulse welding as a welding process in which the output current alternates between a background current and a higher peak current. Spec. 1:7—8. Appellants’ attempt to define “pulse welding process” more narrowly than as set forth in the Specification is improper, as pending claims are given their broadest reasonable construction consistent with the specification. In re Am. Acad. ofSci. Tech Ctr., 367 F.3d at 1364. We further note that although Appellants assert that “in pulse welding no short circuiting takes place” (Appeal Br. 9), Appellants also appear to acknowledge that short circuiting does take place by stating that “[pjulse welding attempts to avoid short states” (id. at 10 (emphasis added)). As correctly noted by the Examiner, Stava discloses a welding process in which the welding power is pulsed such that welding current is reduced prior to a short clearing to reduce spatter. See, e.g., Stava 4:32—50; see also id. at 1:48—61; and Final Act. 2—3. Thus, Stava discloses all that is required by claim 57. To the extent Appellants present additional arguments in the Reply Brief that were not included in the Appeal Brief, such arguments are untimely and will not be considered, in that Appellants fail to make a good 5 Appeal 2015-007950 Application 13/916,676 faith showing why they could not have been timely presented in the Appeal Brief. See 37 C.F.R. § 41.41(b)(2). Accordingly, we sustain the rejection of claims 57—59, 62, and 63 as being anticipated by Stava. Anticipation Based on Parks Appellants argue claims 57, 58, 62, and 65 together. Appeal Br. 9-10. We select claim 57 as representative. The Examiner finds that Parks discloses all of the elements of claim 57. Final Act. 3. Appellants present the same arguments as with respect to the rejection based on Stava. Appeal Br. 9-10. As correctly noted by the Examiner, Parks discloses a welding process in which the welding power is pulsed such that welding current is reduced prior to a short clearing to reduce spatter. See, e.g., Parks 4:45—5:7; see also Final Act. 3. To the extent Appellants present additional arguments in the Reply Brief that were not included in the Appeal Brief, such arguments are untimely and will not be considered, in that Appellants fail to make a good faith showing why they could not have been timely presented in the Appeal Brief. Accordingly, we sustain the rejection of claims 57, 58, 62, and 65 as being anticipated by Parks. Obviousness Rejections With respect to the rejection of dependent claims 59-61, 63, and 64, Appellants rely solely on the arguments presented above in regards to the anticipation rejections of claim 57. Appeal Br. 10—11. Accordingly, for the 6 Appeal 2015-007950 Application 13/916,676 same reasons as discussed above, we also sustain the rejections of claims 59 and 63 as being unpatentable over Parks and of claims 60, 61, and 64 as being unpatentable over either of Stava and Parks in combination with Geng. DECISION The Examiner’s decision to reject claims 57—65 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)(l)(iv). AFFIRMED 7