GENERAL ELECTRIC TECHNOLOGY GMBH

Patent Trials and Appeals Board

Jan 18, 2022

2021000711 (P.T.A.B. Jan. 18, 2022)

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. 14/715,882 05/19/2015 Thomas ETTER 506584-US-2 (17851-1279) 1025 45364 7590 01/18/2022 PATENT DOCKET DEPARTMENT (17851) ARMSTRONG TEASDALE LLP 7700 Forsyth Boulevard Suite 1800 St. Louis, MO 63105 EXAMINER SLIFKA, COLIN W ART UNIT PAPER NUMBER 1732 NOTIFICATION DATE DELIVERY MODE 01/18/2022 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): uspatents@armstrongteasdale.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte THOMAS ETTER, HOSSEIN MEIDANI, and MAXIM KONTER ____________________ Appeal 2021-000711 Application 14/715,882 Technology Center 1700 ____________________ Before DONNA M. PRAISS, MICHELLE N. ANKENBRAND, SHELDON M. McGEE, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1, 3-17, 19, and 20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In explaining our Decision, we refer to the Specification filed May 19, 2015 (“Spec.”), the Final Office Action dated Mar. 10, 2020 (“Final Act.”), the Appeal Brief filed Aug. 3, 2020 (“Appeal Br.”), the Examiner’s Answer dated Sept. 14, 2020 (“Ans.”), the Reply Brief filed Nov. 6, 2020 (“Reply Br.”), and the Declaration of Maxim Konter filed May 12, 2020 (“Decl.” or “Konter Declaration”). 2 “Appellant” refers to “applicant(s)” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as General Electric Technology GMBH. Appeal Br. 1. Appeal 2021-000711 Application 14/715,882 2 The subject matter on appeal relates to gamma-prime (ɤʹ) precipitation-strengthened nickel-base superalloys for producing three- dimensional articles using powder-based additive manufacturing, such as a selective laser melting (SLM) or electron beam melting (EBM). Spec. 1:13- 17. According to the Specification, SLM manufactured articles using available powders contain microcracks. Id. at 2:25-30. The Specification describes extensive preheating as one known method of controlling cracking, as well as tight control of minor/trace amounts of zirconium (Zr) and silicon (Si). Id. at 2:30-3:7. The Specification describes Appellant’s invention as a chemical composition for superalloy powder that allows establishing a gamma-prime precipitation content of 60-70 volume % in a heat treated condition to reduce hot cracking tendency of three-dimensional articles formed by additive manufacturing. Id. at 4:13-18. More particularly, the Specification describes adding a sufficient amount of carbon while keeping other grain boundary strengthening elements at very low levels (and preferably free of Si, hafnium (Hf), and Zr) to realize a crack-free processing of nickel-base superalloys with such a high amount of gamma-prime. Id. at 6:29-33. Independent claims 1 and 13 are illustrative of the claimed compositions involved in this Appeal. 1. A nickel-base superalloy powder for additive manufacturing of three-dimensional articles: said nickel-base superalloy powder comprising a powder size distribution between 10 and 100 μm and a spherical morphology and that a ratio of content in weight percent of alloying elements C and B is: C/B = 16-32; wherein the superalloy powder has a chemical composition that comprises: 0.08-0.16 weight percent C, Appeal 2021-000711 Application 14/715,882 3 0.005-0.008 weight percent B, and 0-0.01 weight percent Hf; 0-0.01 weight percent Zr; 0-0.03 weight percent Si; and wherein said superalloy powder has a chemical composition to facilitate establishment of a gamma-prime precipitation content of 60-70 vol.-% in the superalloy in a heat treated condition. 13. A nickel-base superalloy powder for additive manufacturing of three-dimensional articles: said nickel-base superalloy powder comprising a powder size distribution between 10 and 100 μm and a spherical morphology, wherein a ratio of content in weight percent of alloying elements C, B, Hf, Zr, and Si are the following: C/B = 16-32; C/Hf> 2; C/Zr > 8; and C/Si > 1, wherein the super alloy powder has a chemical composition that consists of the following, in weight percent: 7.7-8.3 Cr, 5.0-5.25 Co, 2.0-2.1 Mo, 7.8-8.3 W, 5.8-6.1 Ta, 4.7-5.1 Al, 1.1-1.4 Ti, 0.08-0.16 C, 0.005-0.008 B, 0-0.04 Hf, 0-0.01 Zr, Appeal 2021-000711 Application 14/715,882 4 0-0.08 Si; and remainder Ni and unavoidable impurities, and wherein the chemical composition is configured such that the powder is formable to form a component of the superalloy via an additive manufacturing process in a heat treated condition that has a gamma-prime precipitation content of 60-70 percent volume. Appeal Br. 18-20 (Claims Appendix). REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Name Reference Date Darolia US 5,470,371 Nov. 28, 1995 Danjo Effect of Particle Shape on the Compaction and Flow Properties of Powders, Chemical and Pharmaceutical Bulletin 37 (11) 3070-3073 Nov. 1989 Donachie Superalloys-A Technical Guide, 2nd ed., 106, ASM Int’l Apr. 2011 Craig Handbook of Corrosion Data, 2nd ed., 51, ASM Int’l Dec. 2012 Tiley Evaluation of gamma prime volume fractions and lattice misfits in a nickel base superalloy using the external standard X-ray diffraction method, Materials Science and Engineering A 528(1), 32-36 Nov. 2010 Appeal 2021-000711 Application 14/715,882 5 REJECTIONS The Examiner maintains the following rejections:3 Claim(s) 35 U.S.C. § Reference(s) 1, 3-17, 19, 20 103 Darolia, Danjo, Craig, Donachie 1, 3-17, 19, 20 103 Darolia, Danjo, Tiley, Craig, Donachie ANALYSIS The Examiner concludes that claims 1, 3-17, 19, and 20 are unpatentable under 35 U.S.C. § 103 over Darolia, Danjo, Craig, and Donachie. Final Act. 2. The Examiner finds Darolia discloses a composition having overlapping ranges with independent claims 1 and 13’s components, negligible Si, and the balance nickel and incidental impurities. Id. at 3. The Examiner notes that Darolia does not disclose any particular amount of Si and determines it would have been obvious to a person having ordinary skill in the art to select any reasonably low value below 0.3% to avoid weld cracking as Donachie and Craig teach and as the claims require. Id. The Examiner finds the claimed composition will result in the required gamma- prime content based on Appellant’s Specification. Id. Regarding the ratio C/B, the Examiner finds Darolia’s ranges for the components C and B indicate a ratio of >2.5, which overlaps the claimed range of 16-32. Id. at 3- 4. Regarding the claimed particle size and shape, the Examiner determines it would have been obvious to use spherical particles to improve the compaction and flow properties of the powder as Danjo teaches and to 3 Claims 2 and 18 have been cancelled. Advisory Action dated May 20, 2020; Appeal Br. 18, 21 (Claims Appendix). Appeal 2021-000711 Application 14/715,882 6 optimize the particle diameter because Danjo teaches that particles size affects the mechanical properties of powders. Id. at 4. The Examiner also rejects the claims over the same prior art references in further view of Tiley’s teaching that nickel base superalloy mechanical properties are strongly dependent on gamma-prime volume fraction, thus making gamma-prime volume fraction a recognized result- effect variable and optimization of gamma-prime volume fraction prima facie obvious. Id. at 6-7. Appellant argues each of the rejections of claim 1 and relies on those same arguments for independent claim 13 and the dependent claims. Appeal Br. 3-15. In accordance with 37 C.F.R. § 41.37(c)(1)(iv), we select claim 1 as representative; claims 3-17, 19, and 20 will stand or fall together with claim 1. We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”)). Based on our review of the arguments and evidence of record, we are not persuaded by Appellant that the Examiner reversibly erred in rejecting independent claims 1 and 13 over Darolia in view of Danjo, Craig, and Donachie alone or together with Tiley. Appeal 2021-000711 Application 14/715,882 7 Rejection of Claims 1 and 13 over Darolia, Danjo, Craig, Donachie According to Appellant, the rejection of claim 1 over Darolia, Danjo, Craig, and Donachie should be reversed based on the claimed C/B ratio because (1) nickel-base superalloys having C/B ratios within the claimed range exhibit unexpected properties compared to conventional nickel-base superalloy compositions, which the Konter Declaration supports, (2) Darolia does not disclose the claimed C/B ratio because Darolia’s example falls outside the claimed range (about 7.67), and (3) the Examiner’s calculated C/B ratio of >2.5 has an infinite/undefined maximum because B can be 0 and is so large that any “overlap” would not have been recognizable by a skilled artisan. Appeal Br. 5-9. Appellant additionally argues that none of the cited prior art references disclose a gamma-prime precipitation content of 60-70% as claim 1 requires, and the Examiner has not established the inherency of that result or characteristic as the mere overlap of ranges is insufficient to establish precipitation content is necessarily present. Id. at 9- 11. Prima Facie Obviousness Appellant challenges the Examiner’s prima facie case of obviousness. Appeal Br. 8. To the extent that Appellant challenges the Examiner’s finding that Darolia discloses a nickel-base superalloy composition within ranges that overlap the claimed ranges that is suitable for additive manufacturing of three-dimensional articles, we provide the following comparison chart that shows the record supports the Examiner’s finding of overlapping ranges (individual components listed in weight %). Final Act. 3; Darolia 5:33-57 (Table 1). Appeal 2021-000711 Application 14/715,882 8 Component Claim 1 Claim 13 Darolia Cr 7.7-8.3 3-10 Co 5.0-5.25 0-14.0 Mo 2.0-2.1 0-6.0 W 7.8-8.3 2.0-8.0 Ta 5.8-6.1 4.0-14.0 Al 4.7-5.1 4.0-7.0 Ti 1.1-1.4 0-4.0 C 0.08-0.16 0.08-0.16 0.1-0.5 B 0.005-0.008 0.005-0.008 0-0.04 Hf 0-0.01 0-0.04 0-1.0 Zr 0-0.01 0-0.01 0-0.2 Si 0-0.03 0-0.08 0 Cr 7.7-8.3 3.0-10.0 Ni, incidental impurities Balance Balance C/B ratio 16-32 16-32 >2.5 Therefore, having identified Darolia’s pertinent disclosures and determining that it would have been obvious to use Darolia’s nickel-base superalloy for additive manufacturing of three-dimensional articles is nothing more than using a known article for its intended use in a known environment to accomplish an entirely expected result, the Examiner has established a prima facie case of obviousness of claims 1 and 13 over Darolia. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.”); In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability.”). Appeal 2021-000711 Application 14/715,882 9 Appellant’s argument that a person of ordinary skill in the art would not have recognized the C/B range of >2.5 from Darolia’s disclosure because the range is so large (Appeal Br. 7) is not persuasive of error for a number of reasons. First, Darolia discloses ranges for both carbon and boron that reflect a greater amount of carbon than boron is present. Darolia 5:49- 50 (Table 1). Thus, similar to the claimed ratio, Darolia teaches more carbon than boron should be present in the composition. Second, Appellant acknowledges that the C/B range the Examiner computed based on Darolia’s disclosure takes the minimum disclosed weight percent of carbon (0.1) and divides that by the maximum disclosed weight of boron (0.04) to reach the computed minimum C/B ratio of 2.5. Appeal Br. 6. Appellant does not dispute the Examiner’s calculation method or that a person having ordinary skill in the art would have recognized a minimum ratio of carbon to boron from Darolia’s disclosure. Instead, Appellant directs us to Darolia’s disclosure that boron can be 0 as the basis for the argument that an infinite upper limit for C/B means Darolia does not suggest a C/B range. Id. at 6-7. Thus, based on this record, Darolia suggests a minimum C/B ratio of 2.5. Third, Appellant directs us to Darolia’s example composition containing 0.23% carbon and 0.03% boron to compute a C/B ratio of about 7.67. Id. at 6; Darolia 7:15-20. Darolia’s example composition does not limit Darolia’s disclosure. “It is well settled that a prior art reference is relevant for all that it teaches to those of ordinary skill in the art.” In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992). In sum, Darolia’s disclosure of a nickel-based superalloy composition containing carbon and boron suggests the proportion of carbon exceeds the Appeal 2021-000711 Application 14/715,882 10 proportion of boron in a ratio of greater than 2.5, which Darolia’s example composition that has a ratio of about 7.67 confirms. Appellant asserts multiple prior Board decisions support Appellant’s position that Darolia’s disclosure of carbon to boron proportions “span[ning] between 2.5 to indefinite/undefined” is too broad to constitute an overlapping range. Appeal Br. 7-8. Appellant’s citations are not persuasive of error because the decisions are factually distinguishable and not binding precedent. In Ex parte Bonner, Appeal No. 2016-005512, 2017 WL 5152373 *4 (PTAB Oct. 27, 2017), evidence showed the claimed ratio “at least 0.8 but less than 1.0” would have been expected to provide less desirable flame resistance than the prior art fiber blend having a ratio outside of the claimed range. Here, Appellant has not presented evidence to establish what a person having ordinary skill in the art would have expected with more or less boron in a nickel-base superalloy composition. Bonner also involved the prior art disclosure being completely outside of the claimed range, but here, Darolia’s composition ranges disclose or suggest a minimum value for the C/B proportions. In Ex parte Kawa, Appeal No. 2017-007464, 2018 WL 6584508 *3 (PTAB Nov. 20, 2018), the claimed composition recited “consisting of” certain active ingredients that excluded phosphoproteins. The Kawa panel determined that the record did not support substituting the cited prior art reference’s phosphoproteins with other components. Id. It is undisputed that Darolia explicitly discloses carbon and boron in its composition. In Ex parte Brandt, Appeal No. 2015-004417, 2016 WL 6524803 *1 (PTAB Oct. 26, 2016), the claim recited “a ratio of from 1:2 to 1:5” for the Appeal 2021-000711 Application 14/715,882 11 diameters of pores and thickness. The rejection in Brandt was based on independently optimizing pores and thicknesses which the Brandt panel determined was not shown to have any relationship to the claimed ratio. Id. at *2. In comparison, Darolia’s specific ranges for the carbon and boron components support the Examiner’s finding that Darolia teaches or suggests a minimum C/B ratio of 2.5. Darolia 5:36-57 (Table 1). In Ex parte Tanner, Appeal No. 2012-010155, 2014 WL 1331178 *2 (PTAB Mar. 31, 2014), the narrower range claimed for a composite material was supported with actual data in the Specification’s figures 1, 6, 7, and 8 demonstrating unexpectedly superior properties within the claimed range compared to composites outside the claimed range. Thus, the Tanner panel did not reverse the Examiner’s rejection based on the relative breadth of the disclosed and claimed ranges alone, but, rather, “actual data . . . disclosed in the patent application” showing an advantageous effect in comparison to values outside the claimed range. Id. Neither Appellant’s Specification nor the Konter Declaration provides any data in this record to support unexpected results attributed to the claimed C/B ratio range. In Ex parte Thiede, Appeal No. 2011-002117, 2012 WL 1071622 *1 (BPAI Mar. 28, 2012), the record supported the contention that the prior art reference “does not describe the MDI [methylene diphenylisocyanate] isomer content with sufficient specificity for anticipation.” The claim in Thiede required a particular MDI content, as well as a particular proportion of 2,4#- and 4,4,#-methylene diphenylisocyanate isomers for the MDI content and the prior art provided broad ranges for the proportions of the isomeric components of the MDI. Id. Darolia is not an anticipatory prior art Appeal 2021-000711 Application 14/715,882 12 reference in the present rejection and discloses overlapping amounts for each of the carbon and boron components. In the Reply Brief, Appellant additionally cites Genetics Institute LLC v. Novartis Vaccines and Diagnostics Inc., 655 F.3d 1291, 1306-07 (Fed. Cir. 2011) as support for a broadly disclosed genus not rendering a species prima facie obvious. Reply Br. 1-2. In Genetics Institute, the court noted that prima facie obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. Genetics Institute, 655 F.3d at 1306 (citing In re Peterson, 315 F.3d at 1329). However, Genetics Institute factually distinguished Peterson from the invention at issue on the basis of the size of permitted amino acid deletions, location of those deletions, and the degree of allowable amino acid substitutions from among 68,000 truncated variants of a protein made up of 2,332 amino acids. Id. The court noted that the Genetics Institute case was not a situation where broad ranges invited routine experimentation to discover optimum values. Id. We do not agree with Appellant that the Genetics Institute facts resemble those in this appeal on the basis of Darolia’s calculated C/B ratio being “infinite” when B is zero. Reply Br. 2. Rather, because the C/B ratio represents the presence of two components, C and B, and Darolia’s ranges for C and B are concrete and somewhat broader than the claimed range, this record is more similar to the situation of somewhat broader ranges inviting routine experimentation to discover optimum values. As the Examiner notes (Ans. 4), Darolia implicitly teaches a C/B ratio when both carbon and boron are present in the composition, which means when carbon and boron are Appeal 2021-000711 Application 14/715,882 13 both present, the amount of boron is not zero and the ratio, therefore, is not “infinite” as Appellant asserts. Ans. 4. Once a prima facie case of unpatentability has been established as the Examiner has done on the cited record in this appeal, Appellant may introduce evidence and arguments to counter the prima facie case. Obviousness is then determined on the basis of the evidence as a whole and the relative persuasiveness of the arguments. Oetiker, 977 F.2d at 1445. We address each of Appellant’s arguments below. Criticality of the Carbon to Boron Ratio Appellant contends that even if the Examiner has established a prima facie case of obviousness, the originally filed application and the Konter Declaration “demonstrate that the claimed C/B ratio is critical to reducing crack formation in components formed from the powder.” Appeal Br. 8. Appellant can rebut a prima facie case of obviousness by showing the criticality of the range. The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims. . . . [I]n such a situation, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990). Appellant directs us to the Konter Declaration’s paragraphs 9-11 and three statements in the Specification as evidence “the claimed C/B ratio in the range of 16-32 is particularly effective in producing nearly crack free components by additive manufacturing.” Appeal Br. 9. The Konter Declaration, however, merely paraphrases the same Specification statements cited in the Appeal Brief. Decl. ¶¶ 9-11. Paragraph 9 states that Appeal 2021-000711 Application 14/715,882 14 conventional compositions of nickel-based superalloy “generally do not provide sufficient mechanical strength” and “adding grain boundary strengtheners in proportions typical for cast alloys results in cracking during additive manufacturing.” Id. ¶ 9. Only the Specification is cited as support for this statement and no explanation is provided for how Darolia’s specific composition relates to the “conventional compositions” mentioned. Paragraph 10 states that “adding a sufficient amount of carbon” is responsible for “crack-free processing Ni-base superalloys with such a high amount of gamma prime.” Id. ¶ 10. The C/B ratio range 16-324 is characterized as “preferred.” Id. Neither the Konter Declaration nor the Specification measures or otherwise characterizes the difference in gamma- prime or crack-free processing at the boundaries of the preferred range for the C/B ratio. Nor does the Konter Declaration or Specification differentiate the impact of adding a sufficient amount of carbon on the one hand and the C/B ratio range on the other. As noted in the table above, Darolia teaches a greater amount of carbon relative to boron, as well as a higher carbon content maximum than the claimed range. Id. Significantly, the Konter Declaration does not state explicitly that the range of 16-32 is unexpectedly effective in producing nearly crack-free components by additive manufacturing. Instead, the Konter Declaration concludes in paragraph 12 “I believe that I have demonstrated that the claimed combination produces unexpected, improved, and critical results.” 4 Konter Declaration paragraph 10 states “the preferred range of 16-32 (i.e., powders having a C/B ratio less than 16 or greater than 32),” which appears to be a typographical error, as a range expressed as 16-32 is understood to mean a C/B ratio greater than 16 and less than 32. Appeal 2021-000711 Application 14/715,882 15 In paragraph 11, the Konter Declaration purports to contrast Darolia’s disclosure with the claimed composition. Decl. ¶ 11. The only distinction, however, is the observation that Darolia’s disclosure does not explicitly state that the C/B ratio is a result effective variable with respect to crack formation for additively manufactured components. Id. Darolia’s disclosed ranges for carbon and boron are acknowledged and the declarant concludes from this that a person having ordinary skill in the art “would have no reason to know from the ranges and description of Darolia that a ratio of C/B is a result effective variable in reducing crack formation.” Id. The Konter Declaration goes on to state, without explanation, that a person having ordinary skill in the art would not have “arrive[d] at a C/B ratio” even though Darolia discloses weight percent content of C and B. Id. “[I]t is well settled that unexpected results must be established by factual evidence. ‘Mere argument or conclusory statements in the specification does not suffice.’” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1994)). The Konter Declaration does not provide any factual basis for what would have been expected from compositions that fall within Darolia’s compositional ranges and whether the claimed compositions unexpectedly outperform Darolia’s example that falls outside of the claimed ratio. Without an explanation or basis for what would have been expected from Darolia’s compositions, the conclusion that the properties of the claimed composition are unexpected lacks underlying support for the statement. The Konter Declaration also lacks support for the assertion that a person having ordinary skill in the art would not have recognized a ratio of carbon to boron from Darolia’s disclosure, which discloses not only ranges for both components Appeal 2021-000711 Application 14/715,882 16 but a carbon content that exceeds that for boron, as well as an example composition. Accordingly, we agree with the Examiner that the Konter Declaration is conclusory as to the objective evidence it purports to add to this appeal record. Ans. 6. We do not accord significant weight to the conclusions in the Konter Declaration that (1) the claimed C/B ratio of 16-32 is particularly effective in producing crack free components by additive manufacturing and (2) a person having ordinary skill in the art would not have recognized a carbon to boron ratio from Darolia’s disclosure because evidence does not support them. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he Board is entitled to weigh the declarations and conclude that the lack of factual corroboration warrants discounting the opinions expressed in the declarations.”); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294 (Fed. Cir. 1985) (“Lack of factual support for expert opinion going to factual determinations . . . may render the testimony of little probative value in a validity determination.”); In re Brandstadter, 484 F.2d 1395, 1406 (CCPA 1973) (affidavits reciting conclusions and few facts to buttress said conclusions fail in their purpose). Appellant’s objective evidence and arguments do not include data to support the conclusory statements therein let alone evidence commensurate in scope with the claims. See In re Peterson, 315 F.3d at 1330-31 (“In general, an applicant may overcome a prima facie case of obviousness by establishing ‘that the [claimed] range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range.’ That same standard applies when, as here, the applicant seeks to optimize Appeal 2021-000711 Application 14/715,882 17 certain variables by selecting narrow ranges from broader ranges disclosed in the prior art. Moreover, the applicant’s showing of unexpected results must be commensurate in scope with the claimed range.” (Citations omitted)). Appellant also has not established that the outer limits of its claimed range for C/B are critical or provide unexpected results compared to the prior art range because Appellant has not compared the claimed compositions to the closest prior art, which is Darolia. The burden of establishing that unexpected results support a conclusion of nonobviousness rests with Appellant. In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996). “[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). “[I]t is not enough to show that results are obtained which differ from those obtained in the prior art: that difference must be shown to be an unexpected difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). Appellant’s assertion in the Reply Brief (Reply Br. 3-4) that its objective evidence is not conclusory because the Specification provides similar statements is not persuasive because conclusory statements in the Specification do not constitute data or evidence commensurate in scope with the claims or a comparison to the closest prior art. Accordingly, we do not find Appellant’s objective evidence of non-obviousness of the claimed C/B ratio to be adequate, in light of all of the evidence of record, to support a reversal of the obviousness rejection. Appeal 2021-000711 Application 14/715,882 18 Gamma-Prime Precipitation Appellant contends that the cited prior art is silent regarding a gamma-prime precipitation content of 60-70% vol % as claim 1 requires. Appeal Br. 9. Appellant contends that the overlap between the claimed composition and Darolia’s composition presents merely a possibility that the claimed gamma-prime precipitation content would be present and, therefore, insufficient to establish obviousness. Id. at 10. Appellant’s argument is not persuasive of error because Appellant’s Specification supports the Examiner’s finding that a substantially identical composition such as Darolia’s would have been expected to exhibit substantially identical physical and chemical properties. Ans. 7 (citing Spec. 4:15-18). Moreover, the Specification attributes the high amount of gamma- prime to “adding a sufficient amount of carbon.” Spec. 6:29-33. As discussed above, Darolia discloses a carbon amount that overlaps and extends beyond the claimed range; thus, Darolia’s composition would have been expected to have a sufficient amount of carbon. Once the Examiner establishes a substantially identical chemical composition, the burden shifts to the Appellant to prove that the prior art product does not necessarily or inherently possess the characteristics of the claimed product. In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (“Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product.”). As the Examiner notes, Appellant has not presented any evidence that the claimed compositional elements can Appeal 2021-000711 Application 14/715,882 19 be satisfied without also satisfying claim 1’s gamma-prime precipitation requirement. Appellant’s argument is also not persuasive of error because Darolia discloses precipitating a gamma-prime phase, as the Examiner finds. Ans. 7; Darolia 6:3-30. Moreover, as the Examiner finds (Ans. 7), Darolia discloses “re-precipitating a gamma phase,” which Darolia attributes to “improv[ing] the properties of the matrix” and specifically “strengthening the article.” Darolia 6:35-46. Thus, Darolia indicates a high amount of gamma-prime is desirable. Appellant does not respond in the Reply Brief to the Examiner’s findings regarding the gamma phase content of Darolia’s composition. Ans. 7. Non-analogous Art Appellant contends Danjo is non-analogous art to the claimed subject matter and, therefore, not properly used in the obviousness rejection of claim 1. Appeal Br. 11. Moreover particularly, Appellant contends Danjo is not from the same field of endeavor because Danjo’s powders are for use in a pharmaceutical compound. Id. Appellant also contends Danjo is not reasonably pertinent to problems Appellant’s invention addresses because Danjo is directed to a pharmaceutical powder flow process rather than powders for SLM/EBM processes. Id. at 11-12. According to Appellant, “[a] person of ordinary skill in the art would expect significant differences between the mechanical properties of a nickel based alloy powder and the potato starch powder tested in Danjo.” Id. at 12. Appellant’s arguments are not persuasive of error because Danjo is directed to the mechanical properties of powders and, therefore, pertinent to the problem the inventor faced with respect to good processing, specifically Appeal 2021-000711 Application 14/715,882 20 flowability and compaction. Ans. 9; Danjo, Introduction; Spec. 6:17-19. Appellant does not respond in the Reply Brief to the Examiner’s findings regarding the applicability of powder flow properties intended for pharmaceutical use. Nor does Appellant provide a basis for powders of different substances not sharing common properties for flowability, compaction, and processing purposes. Rejection of Claims 1 and 13 over Darolia, Danjo, Craig, Donachie, Tiley Appellant contends Tiley’s teachings do not overcome the deficiencies of Darolia, Danjo, Craig, and Donachie as argued above. According to Appellant, Tiley’s teachings with respect to gamma-prime precipitation content attribute multiple factors operating together to be result effective, rather than concentration alone. Appeal Br. 15 (citing Tiley Section 1). Appellant also argues that the largest volume content number that Tiley identifies is 42.99%, thus Tiley fails to disclose or suggest the use of a 60-70% by volume content required by claim 1. Id. (citing Tiley Section 3.2). Appellant’s arguments are not persuasive of error for the same reasons discussed above in connection with the rejection of claim 1 over Darolia, Danjo, Craig, and Donachie. Regarding Tiley, the Examiner points out that even if multiple factors affect the final mechanical properties of a nickel- base superalloy, the fact that gamma-prime volume fraction is one of them means that it is an art-recognized result effective variable. Ans. 10-11. The record supports the Examiner’s finding that gamma-prime volume fraction is a result effective variable. Tiley Section 1, Introduction (“The resulting mechanical properties [in a nickel-base superalloy] are strongly dependent on the volume fraction, size, and distribution of ɤʹ.”). Appellant does not Appeal 2021-000711 Application 14/715,882 21 respond in the Reply Brief to the Examiner’s findings regarding Tiley’s disclosure of gamma-prime volume fraction as an art-recognized result effective variable as it affects the final mechanical properties of a nickel- base superalloy. Moreover, when patentability is predicated upon a change in a result- effective variable, the burden is on Appellant to establish with objective evidence that the change is critical, i.e. it leads to a new unexpected result. See In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456 (CCPA 1955). As discussed above, Appellant has not provided such evidence showing criticality commensurate with the scope of the claimed ranges. Summary Having considered Appellant’s arguments and declaration evidence together with the Examiner’s findings, the evidence of record supports the Examiner’s conclusion that the nickel-base superalloy powder compositions recited in claims 1, 3-17, 19, and 20 would have been obvious to one of ordinary skill in the art in view of the teachings of the cited prior art references. CONCLUSION We affirm the Examiner’s rejections of claims 1, 3-17, 19, and 20 as obvious under 35 U.S.C. § 103. DECISION SUMMARY In summary: Appeal 2021-000711 Application 14/715,882 22 Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1, 3-17, 19, 20 103 Darolia, Danjo, Craig, Donachie 1, 3-17, 19, 20 1, 3-17, 19, 20 103 Darolia, Danjo, Craig, Donachie, Tiley 1, 3-17, 19, 20 Overall Outcome 1, 3-17, 19, 20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED