Ex Parte KennedyDownload PDFPatent Trial and Appeal BoardMar 17, 201713021978 (P.T.A.B. Mar. 17, 2017) Copy Citation 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. 13/021,978 02/07/2011 Richard L. Kennedy TAV-2025CON/020607CON 5751 66376 7590 03/21/2017 ALLEGHENY TECHNOLOGIES INCORPORATED 1000 SIX PPG PLACE PITTSBURGH, PA 15222-5479 ART UNIT PAPER NUMBER 1733 NOTIFICATION DATE DELIVERY MODE 03/21/2017 ELECTRONIC EXAMINER ZHENG, LOIS L 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): maria.dunn@atimetals.com ATIDocketing@ atimetals.com uspatentmail@klgates.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICHARD L. KENNEDY Appeal 2015-007332 Application 13/021,978 Technology Center 1700 Before ADRIENE LEPIANE HANLON, GEORGE C. BEST, and AVELYN M. ROSS, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 1-14,1 16, 17, and 19-32 of Application 13/021,978 under 35 U.S.C. § 103(a) as obvious. Final Act. (March 27, 2014). Appellant2 seeks reversal of these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6. 1 The Office Action Summary for the Final Action identifies claim 15 as rejected. The body of the Final Action, however, does not discuss claim 15 In the June 18, 2013, Non-Final Action, the Examiner objected to claim 15 but indicated that it would be allowable if rewritten in independent form. Non-Final Act. 10. Because claim 15 has not been amended subsequent to this Non-Final Action, we assume it was mistakenly identified as rejected and remains objected to. 2 ATI Properties, Inc. is identified as the real party in interest. Appeal Br. 1 Appeal 2015-007332 Application 13/021,978 For the reasons set forth below, we AFFIRM-IN-PART. BACKGROUND The ’978 Application describes methods and apparatus for processing molten materials. Spec. ^ 2. In particular, the methods and apparatus are useful for conveying and/or atomizing molten materials using a nozzle. Id. Claim 1 is representative of the ’978 Application’s claims and is reproduced below from the Claims Appendix of the Appeal Brief: 1. A nozzle assembly for conveying a molten material, the nozzle assembly comprising: a nozzle body comprising a material having a melting temperature greater than 1660°C, the material selected from the group consisting of titanium and titanium alloys, zirconium and zirconium alloys, hafnium and hafnium alloys, vanadium and vanadium alloys, niobium and niobium alloys, tantalum and tantalum alloys, chromium and chromium alloys, molybdenum and molybdenum alloys, tungsten and tungsten alloys, platinum and platinum alloys, graphite, molybdenum disilicide, silicon carbide, and nickel aluminide, the nozzle body comprising: a first surface, a second surface, a sidewall connecting the first surface and the second surface, and a passageway extending through the nozzle body from the first surface to the second surface; a layer of ceramic material deposited on an interior surface of the passageway; and a power source connected to the nozzle assembly, the power source configured to heat the nozzle body; wherein the layer of ceramic material is deposited on all molten material-contacting surfaces of the nozzle body. Appeal Br. 43. 2 Appeal 2015-007332 Application 13/021,978 REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 1-10, 13, 14, 16, 19, 20, 24-29, 31, and 32 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Besser3 and Tames.4 Final Act. 4. 2. Claims 11 and 12 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Besser, Limes, and Wang.5 Final Act. 8. 3. Claim 17 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Besser, Limes, and JP ’472.6 Final Act. 9. 4. Claims 21-23 and 30 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Besser, Limes, and Cook.7 Final Act. 9. DISCUSSION Rejection 1. Appellant presents separate arguments for reversal of this rejection with respect to six distinct groups of claims. See Appeal Br. 7-37. We address each group of claims separately. 3 US 6,358,466 Bl, issued March 19, 2002. 4 US 3,196,504, issued July 27, 1965. 5 US 5,164,097, issued November 17, 1992. 6 JP 62-224472, published October 2, 1987 (“JP ’472”). An English- language translation of the Abstract, identifying Kazuo Karashima as the first-named inventor, is of record in the ’978 Application. 7 US 3,942,293, issued March 9, 1976. 3 Appeal 2015-007332 Application 13/021,978 Claims 1—6, 16, 19, 20, 24, 25, and 29. Appellant argues that the rejection of independent claim 1 should be reversed because the Examiner has not established a prima facie case of obviousness. In particular, Appellant argues that the Examiner erred by finding that the combination of Besser and Limes describes or suggests the claimed “nozzle body” as recited in claim 1. See Appeal Br. 8-26. We begin, as we must, by considering the proper interpretation of the claim term “nozzle body.” See Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed. Cir. 2001) (“Only when a claim is properly understood can a determination be made . . . whether the prior art anticipates and/or renders obvious the claimed invention.”). During prosecution, the PTO gives the language of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account any definitions or other enlightenment provided by the written description contained in the applicant’s specification. In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997). We begin by noting that Appellant does not argue that the Specification sets forth a specific definition of either “nozzle body” or “body.” Nor has our review of the Specification revealed such a definition. Thus, we begin by determining how a person having ordinary skill in the art would have understood the term “nozzle body” in view of the description set forth in the Specification. Appellant argues that “the term ‘body’ is generally defined, in relevant part, as ‘a mass of matter distinct from other masses’ or ‘a mass or portion of something distinct from other masses.’” Reply Br. 4 (citing 4 Appeal 2015-007332 Application 13/021,978 definition of body from Merriam-Webster Online Dictionary). Appellant argues that [t]his evidence of the ordinary usage of the term “body” unquestionably indicates that the claim term “nozzle body,” at its broadest reasonable extent, refers to a single/monolithic mass or structure that is distinct from other masses or structures, even other masses or structures such as coatings or layers in direct physical contact with the nozzle body. Id. (emphasis added); see also Appeal Br. 15. Appellant contends that this definition of the claim term “nozzle body” is supported by the ’978 Application’s Specification: “The Specification, including the drawings, makes it abundantly clear that a nozzle body is a structural component that is different than and [is] distinct from adjacent layers, and that the singular and monolithic structure of a nozzle body does not include adjacent layers deposited onto the nozzle body.” Id.; see generally id. at 4-5. We disagree with Appellant’s general definition of the term “body.” We begin by noting that, in general usage, the term “body” often refers to “the main, central, or principal part” of a thing. Body \ Definition of Body by Merriam-Webster, Merriam-Webster.com, https://www.merriam- webster.com/dictionary/body; see also The American Heritage Dictionary, 193 (2nd College Ed., Houghton Mifflin Co. 1982) (“The main or central part of something, as: a. The nave of a church. . . . c. The passenger- and cargo carrying part of an aircraft, ship, or vehicle, d. The sound box of a musical instrument.”); Body—definition of body by The Free Dictionary, TheFreeDictionary.com, http://www.thefreedictionary.com/body (“The main or central part”); Define: body—Google Search, Google, https://www.google.com/search?q=defme:+body (“the main or central part 5 Appeal 2015-007332 Application 13/021,978 of something, especially a building or text. . . . synonyms: main part, central part, core, heart”); bodyr-Wiktionary, Wiktionary.org, https://en.wiktionary.org/wiki/body (“The largest or most important part of anything, as distinct from its appendages or accessories.”). We acknowledge that sources have alternate definitions that are consistent with that proposed by Appellant. See, e.g., American Heritage Dictionary at 193 (“A bounded aggregate of matter: a body of water.”)'. Body—definition of body by The Free Dictionary, TheFreeDictionary.com, http://www.theffeedictionary.com/body (“A mass of matter that is distinct from other masses: a body of water, a celestial body”); Define: body— Google Search, Google, https://www.google.com/search?q=defme:+body (“technical a distinct material object, ‘the path taken by the falling body.’”); bodyr-Wiktionary, Wiktionary.org, https://en.wiktionary.org/wiki/body (“Any physical object or material thing. All bodies are held together by internal forces. . . . An agglomeration of some substance, especially one that would be otherwise uncountable. The English Channel is a body of water lying between Great Britain and France.”). Each of these definitions, however, is so generic and broad as to be inconsistent with the ’978 Application’s Specification. Nor does the presence of the term “nozzle” sufficiently narrow Appellant’s overly broad definition in a way that makes it consistent with the Specification. Appellant also argues that, given the context provided by the ’978 Application’s Specification, a person having ordinary skill in the art would have understood that the claimed nozzle body is a monolithic structure rather than a layer or a multi-component structure comprising a layer. Appeal Br. 12-16. Appellant’s argument is based upon the Specification’s differentiation between a body and a layer. Id. at 12-13 (citing Specification 6 Appeal 2015-007332 Application 13/021,978 ^ 28). Appellant also points to the ’978 Application’s Figures 1-9, each of which depicts a nozzle assembly having a nozzle body. Id. at 14-16. In each of these figures, the nozzle body is shown as a monolithic structure. We are not persuaded by these arguments. Appellant does not identify any portion of the Specification requiring the nozzle body’s internal structure to be a monolithic mass. Indeed, although the material from which the nozzle body is manufactured is identified and discussed in the Specification, the particular methods used to manufacture the nozzle body are not identified. We agree with the Examiner that the instant specification neither provides an explicit definition for the claimed nozzle body nor provides any support for the claimed nozzle body to have monolithic physical structure. Even though the nozzle body in the figures of the instant specification might appear monolithic the instant specification does not exclude it from being a multi-component structure. Simplified details in the drawings are very common in patents and patent applications. Answer 2. In view of the foregoing, we conclude that, at the time of the invention, a person having ordinary skill in the art would have understood the term “nozzle body” as referring to the main or principal portion of the nozzle assembly. 7 Appeal 2015-007332 Application 13/021,978 Having construed the claim term “nozzle body,” we now turn to the question of whether the Examiner reversibly erred by finding that Besser describes or suggests the claimed nozzle body. In particular, the Examiner found that the pour tube depicted in Besser’s Figure 2 includes structure that corresponds to the claimed nozzle body. Final Act. 4-5. We reproduce Figure 2 below. 14 Figure 2 is a cross-sectional view of a tubular melt containment component 10 used for processing molten materials. The tubular melt pour tube 11 comprises a melt flow passage 11a with open ends 11 b and 11c. Besser col. 2,11. 53-65. Pour tube 11 includes a thermal sprayed tubular melt-contacting layer 14, a thermal sprayed tubular heat-generating layer 16 deposited on inner layer 14, and an optional thermal sprayed tubular insulation layer 18 deposited on heat-generating layer 16. Id. at col. 2, line 66-col. 3, line 9. In an alternative embodiment, a refractory support or body can be used in lieu of thermal insulation layer 18. Id. 8 Appeal 2015-007332 Application 13/021,978 In rejecting claim 1, the Examiner proposes two alternative theories for how the pouring tube depicted in Besser’s Figure 2 describes the claimed nozzle body. Final Act. 4. In the Examiner’s first theory, heat-generating layer 16, by itself, corresponds to the claimed nozzle body. Id. at 4-5. In the Examiner’s second theory, the combination of heat-generating layer 16 and either outer thermal insulation layer 18 or the refractory support or body corresponds to the claimed nozzle body. Id. at 5. We address each of these theories separately. First, we cannot affirm a finding that Besser describes or suggests the claimed nozzle body based upon the Examiner’s theory that heat-generating layer 16, by itself, corresponds to the claimed nozzle body. As discussed above, we have construed the claim term “nozzle body” as referring to the main or principal portion of the nozzle assembly. We determine that the Examiner erred in finding that Besser’s heat-generating layer 16 describes or suggests the claimed nozzle body. Besser describes heat-generating layer 16 as being thermally sprayed upon inner layer 14. Furthermore, neither Besser’s Specification nor Besser’s Figure 2 provide any reason to believe that heat-generating layer 16 is substantially thicker than inner layer 14 such that a person of ordinary skill in the art would consider it to be the main or principal portion of the pour tube. Second, in the alternative, the Examiner found that [t]he combined structure of heat-generating layer 16 of Besser and the optional outer thermal insulation layer 18, or alternatively, the refractory support or body reads on the claimed nozzle body, wherein only part of the combined structure is made of the claimed molybdenum or tungsten material. Such an interpretation is appropriate due to the use of open-ending transitional phrase “comprising” in claim 1. Additionally, claim 1 also does not limit the claimed nozzle 9 Appeal 2015-007332 Application 13/021,978 body to a single component structure or a multi component structure. Final Act. 5. Appellant argues that the Examiner’s finding that the combination of outer thermal insulation layer 18 and heat-generating layer 16 describes or suggests the claimed nozzle body amounts to reversible error. Appeal Br. 19-20. In particular, Appellant contends that a person having ordinary skill in the art would not interpret the combination of separately described layers 16 and 18 as suggesting a nozzle body having a non-layered structural form, especially since Besser separately describes a different portion of its apparatus as comprising a nozzle. Id. This argument is not persuasive because it relies upon Appellant’s contention that the claim term “nozzle body” should be construed as being limited to a monolithic structure. For the reasons discussed above, we do not so limit this claim term. Nor are we persuaded by Appellant’s argument that Besser’s pour tube would not have suggested the claimed nozzle body to a person of ordinary skill in the art because Besser describes a separate part of its apparatus as a nozzle. Appellant’s claims are directed to a structure, and it is axiomatic that claims to a structure or apparatus must be distinguished from the prior art on the basis of structure. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) and cases cited therein; see also In re Danly, 263 F.2d 844, 848 (CCPA 1959) (“Claims drawn to an apparatus must distinguish from the prior art in terms of structure rather than function”); In re Gardiner, 171 F.2d 313, 315-16 (CCPA 1948) (“It is trite to state that the patentability of apparatus claims must be shown in the structure claimed and not merely upon a use, function, or result thereof.”). 10 Appeal 2015-007332 Application 13/021,978 Appellant further contends that the Examiner’s finding that the combination of the refractory support or body and heat-generating layer 16 describes or suggests the claimed nozzle body is erroneous. Appeal Br. 20- 21. Appellant presents four arguments in support of this contention: (1) a person having ordinary skill in the art would not consider the combination of the heat-generating layer and the structurally undefined support or body to be the structural equivalent of a nozzle body, especially when Besser already discloses a separate nozzle, id. at 20; (2) Besser provides no description regarding the structure of the alternative refractory support or body, id. at 21; (3) the physical structure of the nozzle body is in the form of a singular, monolithic component not an assembly or aggregation of discrete structural components, id.; and (4) the Examiner relies upon Besser’s refractory support or body as corresponding to both the nozzle body component recited in independent claims 1 and 32 and also the base component recited in dependent claims 9, 13, and 27, id. We are not persuaded by these arguments. First, as discussed above Besser’s reference to a portion of its apparatus as a “nozzle” is not determinative because Appellant’s structural claim must be distinguished from the prior art on the basis of structure and not merely differences in nomenclature used in the prior art and in Appellant’s claims. See, e.g., Schreiber, 128 F.3d 1478. Second, Besser’s lack of specificity regarding the structure of its refractory support or body does not mandate reversal because Besser’s use of the term “body” would have suggested—due to the ordinary meaning of the term body—a structure sufficient to comprise the main or principal portion of the nozzle assembly to a person having ordinary skill in the art. Third, as discussed above, we do not interpret the claim term “nozzle body” as requiring a monolithic component rather than assembly of 11 Appeal 2015-007332 Application 13/021,978 discrete structural components. Appellant’s fourth argument has some merit, principally regarding the patentability of the pending claims 9, 13, and 27. We will address this argument in our discussion of the rejection of those claims. Appellant’s also argues that the rejection of claim 1 should be revcersed because the Examiner erred by finding that Besser describes or suggests a nozzle body having the structure set forth in claim 1. Appeal Br. 27-29. In particular, Appellant argues that the combined structure made up of Besser’s heat-generating layer and the structurally undefined refractory support or body does not have first and second surfaces connected by a sidewall. Id. at 29. We are not persuaded by this argument. The Examiner’s Answer does not address Appellant’s argument with respect to a nozzle body comprising heat-generating layer 16 and the refractory support or body. See Answer 6- 7. Nevertheless, we do not discern reversible error in the Examiner’s finding because, as the Examiner explained with respect to a nozzle body comprising heat generating layer 16 and outer thermal insulating layer 18, Besser suggests a nozzle body having the claimed structure. See id.; see also Reply Br. 12 (“Under the Examiner’s second interpretation, the combination ofBesser’s heat-generating layer (16) and frustoconically-enlarged outer insulating layer (18) collectively meet the nozzle body recited in the subject claims.”). In view of the foregoing, we determine that Examiner did not err by concluding that the combination of the refractory support or body and the heat-generating layer described in Besser amounts to a description or suggestion of the claimed nozzle body. Thus, we affirm the rejection of claim 1. 12 Appeal 2015-007332 Application 13/021,978 Dependent claims 2-6, 16, 20, 24, 25, and 29 are not argued separately and thus stand or fall with claim 1, from which they ultimately depend. Because we have affirmed the rejection of claim 1, we also affirm the rejection of claims 2-6, 16, 20, 24, 25, and 29. Claims 7, 8, and 26. Appellant presents an additional, separate argument for reversal of the rejection of claims 7, 8 and 26. See Appeal Br. 29-33. These claims specify that the sidewall of the nozzle body comprises either a tapered sidewall or a stepped sidewall. In rejecting these claims, the Examiner found that the particular shape of the sidewall “would have been an obvious engineering design choice absent persuasive evidence that the particularly claimed configuration of tapered and stepped side walls are significant.” Final Act. 8 (citing MPEP § 2144.04 IV(B)). Appellant argues that this finding is erroneous and represents an improper attempt to apply a per se rule of obviousness based upon a misinterpretation of case law. Appeal Br. 30-33. The Examiner responds The examiner does not find appellant’s argument convincing. Just like the container shape in the Dailey case, which has no effect on the functionality of claimed container, the shape of the side wall of the claimed nozzle body also does not affect the functionality of the claimed nozzle, which is to transport molten metal through its internal passageway, especially since the claimed side wall does not come into contact with the molten metal. Therefore, the examiner maintains that the claimed tapered or stepped side walls are obvious engineering design choice absent persuasive evidence demonstrating the criticality of claimed particular side wall configurations. Furthermore, it would have been well within the skills of one of ordinary artisan to have modified other 13 Appeal 2015-007332 Application 13/021,978 equipment to adapt to mate with the different side wall configurations. Answer 7. Appellant replies that the sidewall’s shape affects the functionality of the claimed nozzle because it directly affects the mechanical engagement of the nozzle body with the surrounding equipment during operation. Reply Br. 13-14. Appellant further contends that the Examiner’s reasoning is insufficient because the Examiner has not provided sufficient reason to modify the nozzle body suggested by the combination of Besser and Limes. Id. at 14-15. We are not persuaded by Appellant’s argument. We agree with the Examiner that, at the time of the invention, it would have been well within the ability of a person having ordinary skill in the art to modify the shape of the nozzle body’s sidewall and the surrounding equipment to effect proper engagement so that the nozzle body securely held in place during operation. Furthermore, because the claimed apparatus is used to convey molten metal, a person having ordinary skill in the art would have had every reason to ensure that the nozzle body is securely held in the proper position to avoid accidental discharge of dangerous molten material. Thus, we affirm the Examiner’s rejection of claims 7, 8, and 26. Claims 9, 13, and 27. Appellant presents separate, additional argument for the patentability of claims 9, 13, and 27. Appeal Br. 33-36. These claims further specify that the nozzle assembly further comprises a base configured to receive the nozzle body wherein at least a portion of the base is adjacent to at least a portion of the nozzle body. In rejecting these claims, the Examiner found that Besser’s Figure 4 “shows supporting structures of insulation members surrounding the pouring 14 Appeal 2015-007332 Application 13/021,978 tube 11. The combined structure for insulating the pour tube as shown in Fig. 4 of Besser meets the limitation of the claimed a multi-component split- base member adapted to receive the body as claimed based on the broadest reasonable interpretation.” Final Act. 7. In particular, the Examiner finds that “the surrounding supporting structures including multiple insulation members as shown in Fig. 4 of Besser meets the limitation of the claimed multi-component split-base member.” Answer 8. A modified version of Besser’s Figure 4 is reproduced below: Figure 4 is a sectional view of a high pressure gas atomizing apparatus that includes pour tube 11. Besser col. 2,11. 34-36 (red arrow added). Appellant argues that the Examiner erred because these structures are not configured to receive the nozzle body as required by claims 9, 13, and 27. See Reply Br. 17-19. Appellant argues that induction coil 50 is positioned between the insulation shown in Fig. 4 and “structurally prevents the purported base[] from ‘receiving’ the purported body.” Id. at 18. We are not persuaded by this argument. We begin by noting that nothing in the Examiner’s finding precludes induction coil 50 from being 15 Appeal 2015-007332 Application 13/021,978 part of the base. Furthermore, the lowest of the insulation members depicted in Figure 4 (indicated by the red arrow in the modified version of Figure 4 reproduced above) contacts outer insulation member 18 of pour tube 11. Thus, even if the Examiner had found that the base comprised only those elements identified in Figure 4 as insulation, the base would still contact the pour tube. For the reasons set forth above, we are not persuaded to reverse the rejection of claims 9 and 27. Claim 13, however, further requires that the base is “a split-base comprising two or more components that are adapted to receive the nozzle body, the two or more components each comprising a support surface, wherein at least a portion of each support surface of each split-base component is adjacent at least a portion of the nozzle body.” In rejecting claim 13, the Examiner failed to identify portions of the apparatus depicted in Besser’s Figure 4 that correspond to each of the two or more components or any of the support surfaces required by claim 13. Because the Examiner has not provided reasoning with an adequate basis of factual support, we cannot affirm the Examiner’s rejection of claim 13. Claims 10, 14, and 28. Appellant presents additional arguments for the separate patentability of claims 10, 14, and 28. See Appeal Br. 36-37. We begin by noting that we have reversed the rejection of claim 13, from which claim 14 depends. Accordingly, we also reverse the rejection of claim 14. Turning to claims 10 and 28, these claims each require that the power source be connected to a portion of the nozzle body and to a portion of the base so that the nozzle body can be heated by direct resistance heating. Appellant argues that the apparatus depicted in Besser’s Figure 4 does not 16 Appeal 2015-007332 Application 13/021,978 show a power source is connected to the nozzle body. Thus, Appellant contends, the Examiner has not established a prima facie case of obviousness. The Examiner responds that Besser describes the use of heat generating layer 16 by resistive heating. Answer 8 (citing Besser col. 3,11. 51-54). The relevant portion of Besser is reproduced below: In use in the atomization apparatus of FIG. 4, the thermal sprayed tubular layer 16 is inductively heated as a susceptor of a radio frequency or other suitable heating frequency induction (electromagnetic) field of induction coil 50 or, alternately, resistively heated by passing electrical current therethrough by connecting the tubular layer 16 to a conventional electrical power source 51, such as a conventional DC furnace power supply. Besser col. 3,11. 47-54. As can be seen, Besser describes using resistive heating by connecting heat-generating layer 16 to the power source or using conductive heating by connecting induction coil 50 to the power source. The Examiner does not direct our attention to any embodiment in Besser showing the power source being connected simultaneously to a portion of the nozzle body and a portion of the base for the purpose of resistive heating of the nozzle assembly. Thus, we cannot affirm the Examiner’s rejection of claims 10 and 28. Claim 19. Appellant presents an additional specific argument for reversal of the rejection of claim 19. Appeal Br. 40—41. Claim 19 requires the nozzle body to comprise a material selected from the group consisting of molybdenum, molybdenum alloys, tungsten, and tungsten alloys, and graphite. In rejecting claim 1, the Examiner found that Besser describes heat-generating layer 16 as being made of molybdenum or tungsten. Final 17 Appeal 2015-007332 Application 13/021,978 Act. 4 (citing Besser col. 3,11. 16-27). This finding applies with equal force to the Examiner’s rejection of claim 19. As discussed above, we have affirmed the rejection of claim 1 on the basis of the Examiner’s finding that the combination of the outer refractory support or body and heat-generating layer 16 described in Besser correspond to the claimed nozzle body. Appellant’s arguments for reversal of the rejection premised upon an interpretation of claim 19 requires both refractory support or body and heat-generating layer 16 to be comprised of at least one of the materials recited in claim 19. See Appeal Br. 41. This argument is not persuasive. The claim term nozzle body does not require a monolithic structure, and claim 19 uses the transition “comprises,” leaving open the possibility that the nozzle body contain additional materials not recited in claim 19. Thus, claim 19 does not require the refractory support or body to be made from the same material as heat-generating layer 16. As the Examiner found that, the structure in Besser corresponding to the claimed nozzle body comprises heat-generating layer 16, which is made from molybdenum or tungsten. Thus, Besser describes or suggests a nozzle body comprising either molybdenum or tungsten. Accordingly, we affirm the rejection of claim 19. Claims 31 and 32. Appellant also presents an additional specific argument for reversal of the rejection of claims 31 and 32. Appeal Br. 27. In particular, Appellant argues that these claims explicitly specify that “the nozzle body is not in the form of a layer.” All of the Examiner’s interpretations that include Besser’s heat-generating layer (16), alone or in combination with another of Besser’s structures, as part of a “nozzle body” fail to meet this feature. In other words, a nozzle body cannot 18 Appeal 2015-007332 Application 13/021,978 be partially comprised of a material layer and also not be in the form of a layer. An interpretation in which a “nozzle body” corresponds to or otherwise includes Besser’s heat-generating layer (16) is inconsistent with the requirement of claims 31 and 32 that the nozzle body not be in the form of a layer. Id. We disagree. As always, we begin with the words of the claims themselves. The requirement that “the nozzle body is not in the form of a layer” limits the shape of the nozzle body as a whole. It does not preclude the nozzle body from including a layer of material such as heat-generating layer 16. As discussed above, we have affirmed the rejection of claim 1 based upon the Examiner’s finding that the combination of heat-generating layer 16 and the refractory support or body described in Besser correspond to the claimed nozzle body. Furthermore, we concluded that a person having ordinary skill in the art would have understood that the nozzle body is the main portion of the nozzle assembly. Based upon this claim construction, we are not persuaded that Besser’s combination of a refractory body and heat-generating layer 16 would have the form of two layers of material, let alone a single layer. Thus, we are not persuaded to reverse the rejection of claims 31 and 32. Rejection 2. The Examiner rejected claims 11 and 12 as unpatentable over the combination of Besser, Limes, and Wang. Final Act. 8. Appellant argues that this rejection should be reversed because a modification of the combination of Besser and Limes to incorporate Wang’s channels for cooling water is technologically inconsistent with Besser. Appeal Br. 37- 40; Reply Br. 21-26. 19 Appeal 2015-007332 Application 13/021,978 We agree with Appellant that the Examiner has not adequately explained why a person of ordinary skill in the art would have wanted to incorporate a cooling system into Besser’s apparatus, which is concerned with heating and maintaining the heat in the molten metal stream. We, therefore, reverse the rejection of claims 11 and 12 as unpatentable over the combination of Besser, Limes, and Wang. Rejection 3. The Examiner rejected claim 17 as unpatentable over the combination of Besser, Limes, and JP ’472. Final Act. 9. Appellant presents no arguments for reversal of this rejection. Furthermore, we have affirmed the rejection of claim 1, from which claim 17 depends. We, therefore, also affirm the rejection of claim 17. Rejection 4. The Examiner rejected claims 21-23 and 30 as unpatentable over the combination of Besser, Limes, and Cook. Final Act. 9. Appellant presents specific arguments for reversal of this rejection with respect to claims 22, 23, and 30. See Appeal Br. 40^41. Appellant does not appear to argue for reversal of this rejection with respect to claim 21. Id. We, therefore, affirm the rejection of claim 21. Appellant’s arguments for reversal of the rejection of claims 22, 23, and 30 are identical in substance to the arguments we have previously considered in connection with the rejection of claim 19. See id. As discussed above, these arguments are not persuasive. We, therefore, also affirm the rejection of claims 22, 23, and 30. 20 Appeal 2015-007332 Application 13/021,978 CONCLUSION For the reasons set forth above, we affirm the rejection of claims 1-9, 16, 17, 19-27, and 29-32. We, however, reverse the rejection of claims 10- 14 and 28. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART 21 Copy with citationCopy as parenthetical citation