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Patent Trials and Appeals BoardDec 5, 2019

14413281 - (D) (P.T.A.B. Dec. 5, 2019)

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. 14/413,281 01/07/2015 Nils Ponath PONA3002/JS-FD 8877 23364 7590 12/05/2019 BACON & THOMAS, PLLC 625 SLATERS LANE FOURTH FLOOR ALEXANDRIA, VA 22314-1176 EXAMINER BOLDUC, DAVID J ART UNIT PAPER NUMBER 2852 NOTIFICATION DATE DELIVERY MODE 12/05/2019 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): MAIL@BACONTHOMAS.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NILS PONATH, ANDREAS ROSSBERG, and ELKE SCHMIDT Appeal 2019-002532 Application 14/413,281 Technology Center 2800 Before GEORGE C. BEST, JEFFREY R. SNAY, and MICHAEL G. McMANUS, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 41–56. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Endress + Hauser GmbH + Co. KG as the real party interest. Appeal Br. 2. Appeal 2019-002532 Application 14/413,281 2 BACKGROUND The subject matter on appeal relates to use of an active hard solder or braze to join components, such as in manufacturing a pressure measuring cell. Spec. 1. According to the Specification, use of conventional solder preforms containing Zr, Ni, and Ti can disadvantageously lead to crystalline solder phases upon cooling. Id. at 1–2. The Specification describes providing a bounding layer on surfaces of the core solder volume, such that the bounding layer has a lower melting point than that of the core volume, whereby the structure of the core volume is retained in the soldering process. Id. at 8–9. Claim 41 reads: 41. A pressure measuring cell, comprising: a measuring membrane; a first ceramic body, said first ceramic body is a membrane body of said measuring membrane; and a second ceramic body, said second ceramic body is a platform of the pressure measuring cell, wherein: said platform and said measuring membrane are joined pressure-tightly with one another by means of a joint, which is ring-shaped said first ceramic body and said second ceramic body are connected by means of a joint, said joint containing an active hard solder, or braze; the active hard solder, or braze, has a continuous core volume, which is spaced from said first ceramic body and from said second ceramic body, in each case, by at least 1 μm, especially at least 2 μm; said first ceramic body and/or said second ceramic body comprises Al2O3; said active hard solder, or braze, comprises Zr, Ni and Ti; said joint has a first bounding layer and a second bounding layer, which border on said first ceramic body and on said second ceramic body respectively; said continuous core volume, which includes at least 50% of the volume of said joint is free of crystalline phases of size Appeal 2019-002532 Application 14/413,281 3 greater than 6 μm, especially greater than 4 μm, preferably greater than 2 μm; and at least one bounding layer has a thickness of no more than 3 μm, especially no more than 2 μm and preferably no more than 1 μm. Appeal Br. 14 (Claims Appendix). Claim 51 recites a method for making a pressure measuring cell according to claim 41. Each remaining claim on appeal depends directly or indirectly from claim 41 or 51. REJECTIONS I. Claims 41–44, 47–54, and 562 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Berlinger,3 Glaeser,4 and Shin.5 II. Claims 45 and 46 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Berlinger, Glaeser, Shin, and Maruyama.6 III. Claim 55 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Berlinger, Glaeser, Shin, and Tanner.7 2 In the Final Office Action, the Examiner relied on Glaeser and Shin in rejecting then-independent claim 51. Final Act. 4. Appellant subsequently amended claim 51 to depend from claim 41, whereupon the Examiner indicated that claim 51 would be rejected in a manner consistent with the prior rejections of both claims 41 and 51. Ans. 3. We read the Examiner’s statement in the Answer as indicating that claim 51 stands rejected over the combination of references previously relied upon in rejecting both claims 41 and 51—namely, Berlinger, Glaeser, and Shin. 3 DE 10 2009 054 909 A1, published June 22, 2011. The Examiner relies upon US 2012/0258322 A1, published October 11, 2012, as an English translation of Berlinger, Final Act. 2, which Appellant does not challenge. 4 US 5,372,298, issued December 13, 1994. 5 US 2011/0211987 A1, published September 1, 2011. 6 US 5,916,520, issued June 29, 1999. 7 US 4,148,669, issued April 10, 1979. Appeal 2019-002532 Application 14/413,281 4 OPINION Appellant limits the arguments to claim 41 and does not separately argue Rejections II and III as applied to claims 45, 46, and 55. See Appeal Br. 9–12. We select claim 41 as representative of the claims on appeal. Each of claims 42–56 stands or falls with claim 41. Relevant to Appellant’s arguments on appeal, the Examiner finds that the combined teachings of Berlinger and Glaeser disclose a pressure measuring cell that meets all the limitations of claim 41, except for the recitation that a core volume of the solder or braze is free of the specified crystalline phases. Final Act. 3–4. With regard to that feature, the Examiner finds that Shin teaches that forming a Zr-Ti-Ni alloy joint as a glassy phase having amorphous structure advantageously provides stronger bonding characteristics. Id. at 4 (citing Shin ¶¶ 35–41). Thus, the Examiner determines that Shin would have provided a reason to form the Zr-Ti-Ni joint of Berlinger/Glaeser as an amorphous structure, thereby free of crystalline phases. Id. Appellant presents two arguments on appeal: first, that reliance on Shin was improper because Shin relates to a different technical field and addresses a different problem than that of the instant application; and second, that Shin teaches use of the disclosed joint material for joining titanium-containing components rather than ceramics as claimed. Appeal Br. 11–12. To be properly relied upon in an obviousness analysis, a prior art reference must qualify as “analogous art,” i.e., it must satisfy one of the following conditions: (i) the reference must be from the same field of endeavor as the claimed invention; or (ii) the reference must be reasonably Appeal 2019-002532 Application 14/413,281 5 pertinent to the particular problem with which the inventor is involved. Innovention Toys, LLC v. MGA Entm’t, Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011). “A reference is reasonably pertinent if it, as a result of its subject matter, ‘logically would have commended itself to an inventor’s attention in considering his problem.’” K-TEC, Inc. v. Vita-Mix Corp., 696 F.3d 1364, 1375 (Fed. Cir. 2012) (citing Innovention Toys, 637 F.3d at 1321). Appellant contends that the technical field of the instant application is that of pressure measuring cells. Appeal Br. 11. However, the Specification states that the described invention relates to the joining of ceramic bodies by means of an active hard solder or braze, preferably an active hard solder or braze containing Zr, Ni, and Ti. Spec. 1. The Specification identifies use of the invention in connection with a pressure measurement cell merely as “an example” of the described invention. Id. Notably, original claim 1 lacks any recitation of a pressure measurement cell. Id. at 11. We do not agree that the technical field of the instant application is limited to pressure measurement cells. Rather, consistent with the Specification, we determine that Appellant’s disclosure is in the more general field of active solder or braze materials and their use in joining components. Shin is from the same field of endeavor. See e.g. Shin ¶ 1 (“The present invention relates to a filler alloy composition for brazing.”). Moreover, like the instant application, Shin particularly concerns use of Zr- Ni-Ti solder or braze compositions. Id. Abstr. Accordingly, we are not persuaded that the Examiner’s reliance on Shin was improper. Appellant’s argument that Shin discloses joining titanium-containing components—and therefore does not teach joining ceramic bodies as claimed—does not address the combined prior art disclosures relied upon by Appeal 2019-002532 Application 14/413,281 6 the Examiner. The Examiner finds, and Appellant does not dispute, that Berlinger teaches joinder of ceramic bodies through use of Zr-Ni-Ti active hard solder. Final Act 3. “[T]he test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). In re Keller, 642 F.2d 413, 425 (CCPA 1981). CONCLUSION The Examiner’s decision rejecting claims 41–56 is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 41–44, 47–54, 56 103 Berlinger, Glaeser, Shin 41–44, 47–54, 56 45, 46 103 Berlinger, Glaeser, Shin, Maruyama 45, 46 55 103 Berlinger, Glaeser, Shin, Tanner 55 Overall Outcome 41–56 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)(iv). AFFIRMED