Ex Parte Peters et al

Patent Trial and Appeal BoardMar 6, 2019

13098047 (P.T.A.B. Mar. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/098,047 04/29/2011 Steven R. Peters 141825 7590 03/08/2019 The Lincoln Electric Company 22801 Saint Clair Avenue Legal Department Cleveland, OH 44117 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. 2011-027-US-NP 7795 EXAMINER WARD, THOMAS JOHN ART UNIT PAPER NUMBER 3761 NOTIFICATION DATE DELIVERY MODE 03/08/2019 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): ip@lincolnelectric.com desiree _ cunin @lincolnelectric.com ginger_mcghee@lincolnelectric.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte STEVENR. PETERS and PATRICK WAHLEN Appeal2018-001961 Application 13/098,047 Technology Center 3700 Before LINDAE. HORNER, JEFFREY A. STEPHENS, and BRENT M. DOUGAL, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) from the Examiner's Final Office Action ("Final Act.") rejecting claims 6-13, 22-25, 28-31, 33, 34, and 39, which are all the claims pending in the application. 2,3 We have jurisdiction under 35 U.S.C. Â§ 6(b). We reverse. 1 The real party in interest is identified as Lincoln Global, Inc. Appeal Br. 3. 2 Claims 1-5, 14--21, 26, 27, 32, and 35-38 have been cancelled. See, e.g., Appeal Br. 18-21 (Claims App'x). Indication to the contrary in the Office Action Summary, Final Act. 1, appears to be in error. 3 The Final Office Action is dated March 24, 2017, and is supplemented by an Advisory Action dated June 1, 2017. Appeal 2018-001961 Application 13/098,047 Claimed Subject Matter Claims 6 and 10 are independent. Claim 6, reproduced below with selected limitations emphasized, illustrates the claimed subject matter. 6. A welding apparatus for welding heavy plate work pieces, said welding apparatus comprising: a laser welding device which directs a laser beam to a first weld puddle of said work piece to weld at least a portion of said work piece; a welding torch located adjacent to said laser welding device so as to direct a first welding electrode to said first weld puddle while said laser beam is being directed to said first weld puddle, where said welding torch deposits said first welding electrode to create a first weld bead onto said portion welded by said laser welding device; a flux nozzle which deposits a welding flux onto said first weld bead; and at least two submerged arc welding torches which, subsequent to creating said first weld bead by said laser welding device and said welding torch, direct a corresponding submerged arc filler metal to said first weld bead to create a second weld bead through a submerged arc welding process in which said at least two submerged arc welding torches share a common weld puddle, wherein said at least two submerged arc welding torches are positioned at an angle with respect to each other such that the respective submerged arc filler metal of said at least two submerged arc welding torches shares said common weld puddle during said submerged arc welding process, and wherein said submerged arc welding process melts at least a portion of said first weld bead to consume said melted portion into said second weld bead. 2 Appeal 2018-001961 Application 13/098,047 Rejections I. Claims 6, 8, and 9 stand rejected under pre-AIA 35 U.S.C. Â§ I02(e) as anticipated by Tolling (WO 2011/072734 Al, published June 23, 2011 ). Final Act. 2-3. II. Claims 6-13, 22-25, 28-31, 33, 34, and 39 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as unpatentable over Tolling and Hybinette (US 2010/0320174 Al, published Dec. 23, 2010). Final Act. 4---6. III. Claims 6-13, 22-25, and 28-31 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as unpatentable over Gandy (US 6,884,959 B2, issued Apr. 26, 2005), Koichi4 (US 2007/0013471 Al, published Jan. 18, 2007), Tolling, and Danhier (US 3,200,232, issued Aug. 10, 1965). Final Act. 6- 10.5 DISCUSSION The dispositive issue on appeal is whether Tolling discloses wherein "said at least two submerged arc welding torches are positioned at an angle with respect to each other such that the respective submerged arc filler metal of said at least two submerged arc welding torches shares said common weld puddle during said submerged arc welding process," as recited in independent claims 6 and 10. For purposes of this decision, we will refer to this portion of the claims as the "disputed limitations." 4 Although this patent is to Minami et al., the Examiner referred to it by inventor Minami's first name as listed, "Koichi." We do the same for consistency. 5 We exclude claims 26 and 32 from the rejection because these claims were canceled prior to the Final Office Action. 3 Appeal 2018-001961 Application 13/098,047 Rejection 1-35 USCÂ§ 102(e) Claims 6, 8, 9 The Examiner finds that Tolling's welding heads 34a and 34b are the claimed "at least two submerged arc welding torches." Final Act. 3. The anticipation rejection of claim 6 in the Final Office Action does not address whether Tolling discloses that the two submerged arc welding torches "are positioned at an angle with respect to each other." See id. at 2-3. In the Response to Arguments section of the Final Office Action, the Examiner recites the disputed limitations, and finds: Tolling et al provides almost the same exact structure as the claimed invention where Tolling et al et al [sic] discloses a welding process and a welding arrangement comprising a hybrid welding head 2 which includes an optic system 8 producing a laser for welding (laser welding device, Fig. 1) which is aimed at interaction zone 24 ( first weld puddle) which creates a root portion 58 (first bead) and an electric arc welding head 12 (welding torch, Fig. 1) located adjacent to the optic system 8 to direct an electrode 14 to interaction zone 24 where head 12 is capable of depositing electrode 14 to create a weld bead onto portion welded by optic system 8; submerged welding head 4 which includes flux powder applicator 32 (flux nozzle) which is capable to deposit flux powder and submerged electrode heads 34a and 34b supplying a consumable electrode 36a,36b penetrating a layer 3 8 of flux powder covering the area to be welded ( common weld puddle) where the root portion 5 8 of created by head 2 is melted by the heat affected zone from submerged welding head 4 where the submerged welding head 4 and hybrid welding head 2 travel the same path and will share the same weld puddle when used (Fig. 3). Final Act. 11 ( emphasis added). The above-quoted findings do not explain how Tolling discloses that the two submerged arc welding torches 34a and 34b "are positioned at an angle with respect to each other." 4 Appeal 2018-001961 Application 13/098,047 Appellants point out, and the Examiner does not dispute, that "Tolling discloses a structure in which the submerged arc welding torches are parallel to each other." Appeal Br. 9. We agree, as evidenced by the orientation of electrode heads 34a and 34b in Figure 1 of Tolling. In the Examiner's Answer, the Examiner explains that "[t]he angle between submerged electrode heads 34a and 34b is zero angle, which by definition is still an angle." Ans. 16-17. The issue, then, is whether claim 6 is reasonably interpreted to encompass a "zero angle," i.e., submerged arc welding torches positioned parallel to one another. We determine that, even under the broadest reasonable interpretation, one of skill in the art would understand welding torches "positioned at an angle with respect to each other," as recited in claim 6, to exclude parallel positioning of the torches. To read the disputed limitations as encompassing parallel heads renders superfluous the phrase "at an angle with respect to each other." Use of the phrase in the Specification further supports interpreting "at an angle with respect to each other" to exclude parallel positioning. For example, paragraph 27 of the Specification provides that welding torch 205 as depicted in Figure 2 "is positioned such that the first filler metal 207 ( welding electrode) is delivered to the weld at an angle with respect to the surface of the weld" ( emphasis added). Figure 2 shows torch 205 positioned at an oblique angle with respect to the weld surface. In addition, the laser beam is positioned normal to the surface of the weld, see Spec. ,r 26, and "the laser beam 203 and the filler metal 207 are not parallel to each other" because the welding electrode is delivered "at an angle" with respect to the surface of the weld, Spec. ,r 27. Thus, interpreting "at an angle" to include any angle is not consistent with use of the phrase in 5 Appeal 2018-001961 Application 13/098,047 paragraph 27 of the Specification. Use of the terms "angled" and "angling" in paragraphs 34 and 35 of the Specification, describing the positioning of the submerged arc welding torches, is consistent with paragraph 27. Paragraph 34 states that Figure 2 shows "the torches 213 and 215 are angled with respect to the weld and are angled such that the respective fillers 214 and 216 are directed towards each other." Considering use of forms of the term "angle" in the claim and Specification, we determine that the Examiner's interpretation of claim 6 to include parallel positioning of the submerged arc welding torches is not reasonable. Because the rejection of claim 6 as anticipated by Tolling relies on an incorrect claim construction, we do not sustain the rejection. For the same reasons, we also do not sustain the rejection of dependent claims 8 and 9, which are rejected on the same ground. Rejections II and III As noted above, independent claim 10 also recites that the two submerged arc welding torches "are positioned at an angle with respect to each other." The additional prior art references included in Rejections II and III are not relied on to cure the deficiency relating to the submerged arc welding torches being positioned at an angle with respect to each other, as discussed supra. Accordingly, we do not sustain the Examiner's decision rejecting claims 6-13, 22-25, 28-31, 33, 34, and 39 as unpatentable over Tolling and Hybinette (Rejection II), or claims 6-13, 22-25, and 28-31 as unpatentable over Gandy, Koichi, Tolling, and Danhier (Rejection III). 6 Appeal 2018-001961 Application 13/098,047 DECISION We reverse the Examiner's decision to reject claims 6-13, 22-25, 28- 31, 33, 34, and 39. REVERSED 7