Ex Parte Kennedy

Patent Trial and Appeal Board

Mar 17, 2017

13021978 (P.T.A.B. Mar. 17, 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.
13/021,978 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.
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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.
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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
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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
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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
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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.
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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.
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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
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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.”).
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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