Ex Parte Nürnberger et al

Patent Trial and Appeal Board

Aug 2, 2016

12865817 (P.T.A.B. Aug. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/865,817 08/02/2010
27877 7590 08/04/2016
KENNAMETAL INC
Intellectual Property Department
P.O. BOX231
1600 TECHNOLOGY WAY
LATROBE, PA 15650
FIRST NAMED INVENTOR
Michael Nurnberger
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
K-2626DEUS1 6365
EXAMINER
NGUYEN, PHUONG T
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
08/04/2016 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):
larry.meenan@kennametal.com
k-corp. patents@kennametal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL NURNBERGER, RUDOLF GRAU, and
HUBERT SCHWEIGER
Appeal2014-007541
Application 12/865,817
Technology Center 3700
Before JENNIFER D. BAHR, FREDERICK C. LANEY, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Nurnberger et al. ("Appellants") appeal under 35 U.S.C.
§ 134(a) from the Examiner's final decision rejecting claims 1-10. 1 We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants submit the real party in interest is Kennametal Sintec Keramik
GmbH. Appeal Br. 3.
Appeal2014-007541
Application 12/865,817
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. An electrically conducting vaporizer body, being resistance-
heatable for vaporizing metal and having a vaporizing surface
for vaporizing metal in a PVD metallization installation,
wherein the vaporizing surface comprises a plurality of
recesses, wherein openings of the recesses have an
area/perimeter-ratio of greater than or equal to 1.5 mm.
REJECTIONS
1. Claims 1-8 and 10 are rejected under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over Sato (US 2006/0162662 Al, pub. July 27,
2006).
2. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Sato and Ikarashi (US 2008/0245305 Al, pub. Oct. 9, 2008).
DISCUSSION
Rejection 1: Claims 1---8 and 10 Anticipation/Obviousness over Sato
Appellants argue these claims as a group. Appeal Br. 5-7. Pursuant
to 3 7 C.F .R. § 41.3 7 ( 1 )( c )(iv), we select claim 1 and all claims in this group
stand or fall with claim 1.
The Examiner finds that Sato discloses all the limitations of claim 1
including a vaporizing surface 31. Final Act. 2-3. Appellants contend that
Sato does not anticipate claim 1 because "[ n ]owhere does Sato describe a
vaporizer body having vaporizer surfaces between the recesses." Appeal Br.
5. Appellants contend that Sato' s mound portions 31 a are not vaporizing
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Application 12/865,817
surfaces because the molten metal is contained within the recesses 32a and
does not contact the upper surface 31 and mound portions 31 a prior to
vaporization. Id. at 5---6. The Examiner responds that the claims do not
require the "vaporizer swface between the recesses." Ans. 2. The Examiner
further explains that vaporizer surfaces can be "interpreted as: the surface for
the dopant material 30A, fig. 3 to be vaporized, therefore the element 31, fig.
3 is considered as 'vaporizer surface."' Id. In reply, Appellants argue,
based on the embodiment illustrated in Figure le of Appellants' application,
that the vaporizer surfaces are "necessarily present" between the recesses.
Reply Br. 2.
To the extent that Appellants contend the claims require the
vaporizing surface to be located between the recesses, we note the claims do
not contain any such recitation. Consequently, Appellants' argument that
Sato does not anticipate because its vaporizer surfaces are not located
between the recesses is unpersuasive. See In re Self, 671 F.2d 1344, 1348
(CCPA 1982)("[A]ppellant's arguments fail from the outset because ... they
are not based on limitations appearing in the claims."). To the extent that
Appellants contend that we should construe the phrase "vaporizing surface"
to limit the location of the vaporizing surfaces to between the recesses or
surfaces on which molten metal is present prior to vaporization, we find that
contention unpersuasive for the following reasons.
We first construe the phrase "vaporizing surface." We give claim
terms their broadest reasonable interpretation consistent with the
Specification as it would be interpreted by one of ordinary skill in the art.
See In re Suitco Swface, Inc., 603 F.3d 1255, 1259--60 (Fed. Cir. 2010); In
re Morris, 127 F.3d 1048, 1054--55 (Fed. Cir. 1997). Although the claims
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Application 12/865,817
are interpreted in light of the Specification, limitations from the
Specification are not read into the claims. In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993).
The Specification provides that the "vaporizing surface" is "formed
by the upper side of the plate." Spec. p. 11. Appellants argue the
vaporizing surfaces must necessarily be located between the recesses
because the molten metal to be vaporized is located between the recesses in
the embodiment illustrated in Figure le. However, in Appellants' Figures
1 band le, the molten material 9 to be vaporized is located not only between
the recesses on the upper side of the plate but also in the recesses and in
areas of the upper side of the plate not located between the recesses. Id. at
11, Figs. lb, le. We also note that Appellants' disclosure indicates that the
upper side of the plate is not entirely covered by molten metal prior to
vaporization. See Fig. 1 b (molten metal inside cross-hatched area), Fig. le
(cavity 13 contains molten metal), Spec. p. 12. Based on the foregoing, the
presence of molten material in the area between the recesses in Figure le
does not limit the construction of the phrase "vaporizing surface."
Therefore, we determine that one of ordinary skill in the art would
reasonably understand the phrase "vaporizing surface" to mean the upper
side of the plate.
Appellants submit that Sato' s upper surface 31 absorbs radiant heat
that is conducted to and, in fact, vaporizes the molten material 30a. Appeal
Br. 7 (quoting Sato i-f 78). Sato's Figure 4B discloses that the dopant
material is vaporized at the plane of upper surface 31. Consequently, the
Examiner's finding that upper surface 31 of Sato's crucible 22A is the
recited vaporizing surface, as we have construed that phrase, is supported by
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Application 12/865,817
a preponderance of the evidence. Appellants do not interpose any additional
contentions of error with respect to claim 1 and we, thus, sustain the
rejection of claim 1 and claims 2-8 and 10 under 35 U.S.C. § 102(b).
In light of our decision with respect to the anticipation rejection, we
do not reach the question of whether Sato renders these claims unpatentable
under 35 U.S.C. § 103(a). See 37 C.F.R. § 41.50 (a)(l)("The affirmance of
the rejection of a claim on any of the grounds specified constitutes a general
affirmance of the decision of the examiner on that claim.").
Rejection 2: Claim 9 Obviousness over Sato and Ikarashi
The Examiner finds that Ikarashi discloses openings in "the shape of
an isosceles triangle" as recited in dependent claim 9 and concludes it would
have been obvious to combine Sato and Ikarashi. Final Act. 4--5.
Appellants contend, as with independent claim 1, that Sato does not disclose
the vaporizing surface and that Ikarashi does not cure the alleged factual
deficiency of Sato. Appeal Br. 9. Appellants' argument regarding Sato's
failure to disclose the vaporizing surface, as stated above, is not persuasive.
Appellants do not interpose any other contentions of error concerning either
the Examiner's factual findings or rationale for the combination of Sato and
Ikarahsi. Id. Therefore, we sustain the rejection of claim 9 under 35 U.S.C.
§ 103(a).
DECISION
The Examiner's decision rejecting claims 1-10 is affirmed.
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Application 12/865,817
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.
§ 1.136(a)(l )(iv).
AFFIRMED
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