Ex Parte Davis et al

Patent Trial and Appeal Board

Nov 26, 2018

14237878 (P.T.A.B. Nov. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/237,878 04/07/2014
96537 7590 11/28/2018
BEUS SE WOLTER SANKS & MAIRE
Mail Stop AG
390 N. ORANGE A VE, SUITE 2500
ORLANDO, FL 32801
FIRST NAMED INVENTOR
Anthony Davis
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.
2011P08691WOUS (053) 4839
EXAMINER
BRATLAND JR, KENNETH A
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
11/28/2018 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):
USPTO@patentorlando.com
USPTO@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY DA VIS and DETLEF HAJE
Appeal2017-007564
Application 14/237,878
Technology Center 1700
Before MICHAEL P. COLAIANNI, JENNIFER R. GUPTA, and
DEBRA L. DENNETT, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134 the final rejection of
claims 16-33 and 35.2 We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
The claims on appeal are directed to a method of manufacturing a
component, such as a gas turbine blade, from a single crystal or a
directionally solidified material (Spec. 1:9-11 ).
1 "The real party in interest in this Appeal is the assignee, Siemens
Aktiengesellschaft." App. Br. 1.
2 Appellants canceled claim 34 in their November 4, 2016, Response to the
Final Office Action. See Advisory Action 2.
Appeal2017-007564
Application 14/237,878
Claim 16 is illustrative:
16. A method for manufacturing a component of a
single crystal or a directionally solidified material, said
component being manufactured having a predefined shape,
compnsmg:
superimposing at least a powder layer of a powder of a first
material onto at least a surface of a substrate out of a second,
single crystal or directionally solidified, material;
transforming the powder layer into a substrate layer with
a new surface of the substrate by altering at least a physical
condition of the first material of the powder by applying energy
to the powder layer;
wherein said substrate layer is becoming a part of the
substrate;
wherein the second, single crystal or directionally
solidified, material of the substrate has a grain orientation and
the material of the substrate layer has a grain orientation;
wherein the material of the substrate layer adopts the same
grain orientation as the grain orientation of the substrate during
the transforming process;
detecting the grain orientation of the material of the
substrate layer in situ and when the grain orientation of the
material of at least a section of the substrate layer is different
from the grain orientation of the substrate, said section of the
substrate layer is transformed by altering a physical condition of
the material of the section by applying energy to correct the grain
orientation of the section of the substrate layer in situ; and
wherein the steps are repeated till the component has
grown layer by layer into the predefined shape while a process
temperature is maintained below a melting temperature of at least
the first material.
Appellants appeal the following rejections:
1. Claims 16-21, 23-31, and 33 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Morris et al. (US 2011/0135952 Al; publ. June 9,
2011) ("Morris") in view of Chen-Nan Sun et al. (Effect of Laser
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Application 14/237,878
Sintering on Ti-ZrB2 Mixtures, 94 J. AM. CERAM Soc. 3282-85
(2011)) ("Sun").
2. Claims 22, and 32 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Morris in view of Sun and Benda et al.
(US 5,508,489; iss. Apr. 16, 1996) ("Benda").
3. Claim 35 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Morris in view of Sun and Tanabe et al. (US 2004/0009632 Al; publ.
Jan. 15, 2004) ("Tanabe").
FINDINGS OF FACT & ANALYSIS
Rejection (1): Claims 16-21, 23-31, and 33
Appellants argue the subject matter of claims 16, 29, and 30
separately (App. Br. 7-17). Any claim not argued separately will stand or
fall with the sole independent claim 16.
Claim 16
Appellants argue that neither Morris nor Sun teach all the limitations
of claim 16 (App. Br. 7-8). Appellants contend that Morris and Sun do not
teach detecting grain orientation of the substrate layer in situ when the grain
orientation of the material of at least a section of the substrate layer is
different from the grain orientation of the substrate and applying energy to
correct the grain orientation of the section of the substrate layer in situ (App.
Br. 7). Appellants contend that the Examiner's determination that the one of
ordinary skill in the art, based upon the teachings of Morris and Sun, would
have applied additional laser sintering until the desired microstructure is
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Application 14/237,878
obtained is unsupported by evidence because the references do not teach the
disputed steps (App. Br. 8).
The claim limitation in dispute recites:
detecting the grain orientation of the material of the
substrate layer in situ and when the grain orientation of the
material of at least a section of the substrate layer is different
from the grain orientation of the substrate, said section of the
substrate layer is transformed by altering a physical condition of
the material of the section by applying energy to correct the grain
orientation of the section of the substrate layer in situ.
(Emphasis added). The Examiner finds that the step of applying additional
energy to correct the grain orientation is conditioned on the material having
a different grain orientation than the grain orientation of the substrate
(Ans. 2). We construe the disputed claim limitation in accord with the
Examiner that the step of applying additional energy to correct grain
orientation is only used when a different grain orientation is detected. In
other words, the grain correction step is optional and is not be necessary
when no defect in grain orientation is detected.
With this claim construction in mind, we find that the Examiner's
rejection is premised on combining Sun's teaching to use high temperature
X-ray diffraction (HTXRD) to monitor the crystal structure of a high
temperature material with Morris' process for forming a gas turbine by laser
sintering layers of metal alloy powder atop one another. Final Act. 5. In
other words, taking into account the conditional nature of the grain
reorienting step, the process recited in the claim is satisfied by applying
layers which have the desired grain orientation as determined by the
HTXRD of Sun. The combined teachings of Morris and Sun do not need to
teach the subsequent reheating with additional energy to reorient the grain in
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Application 14/237,878
order to satisfy the claim. Ex parte Schulhauser, 2013-007847, 2016 WL
6277792, at *5 (PTAB Apr. 28, 2016) (precedential). Accordingly, we are
unpersuaded by Appellants' argument that the art does not teach detecting
and reorienting the grain of the alloy.
Appellants make the following additional arguments regarding
claim 16: (1) a person of ordinary skill would not have found it obvious to
modify Morris's process that laser sinters two substantially identical
materials with Sun's HTXRD technique, which assesses the elemental
distribution between phases of two different materials (App. Br. 9),
(2) prolonging the laser sintering process to achieve the desired
microstructural orientation runs counter to Morris' teaching to reduce lead
time in making a rotor (App. Br. 9), (3) Sun teaches away from prolonging
the laser sintering by using an induction heater to mitigate thermal stress
caused by the scanning laser beam (App. Br. 10), (4) the combination would
have required replacing one or both laser scans in Morris with Sun's
induction heater, which would have frustrated Morris' purpose (App.
Br. 11 ), ( 5) the Examiner engaged in impermissible hindsight in concluding
that the ordinarily skilled artisan interested in utilizing the laser-based
process of Morris would instantly recognize that additional corrective
measures necessary in response to the XRD measurements may be
performed using the laser itself (App. Br. 12), (6) Sun teaches heating the
sintered sample to a temperature between 298 Kand 1023 K which would
likely damage Morris' equipment (App. Br. 12), and (7) Morris teaches that
the metal powder layer has the same orientation as the seed crystal, so there
is no defect to correct (App. Br. 13).
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Appellants' arguments are not persuasive. Regarding arguments ( 1)
and (7), the Examiner's rejection is based upon using Sun's X-ray
diffraction to monitor the change in phases/microstructure with temperature,
if any (Final Act. 5; Ans. 2). Under the broadest reasonable claim
construction, the conditional limitation need not be performed for the claim
to be satisfied. Therefore, using Sun's high temperature X-ray diffraction
(HTXRD) to monitor the phases in Morris' formed layers would have been
obvious. If, as argued by Appellants, Morris' process yields layers having
the desired crystal structure as determined by using Sun's HTXRD, then the
claims are satisfied even though no grain reorienting step is used.
Regarding arguments (2) to (4), Sun teaches to use an induction heater
in addition to the laser heating (Sun 3282). Sun teaches that the induction
heater mitigates thermal stress, but Sun does not teach using an induction
heater in lieu of laser sintering. In other words, even assuming that
Appellants' argument is correct that an induction heater would have been
required by the combination, the claim does not exclude using an induction
heater in addition to the laser sintering; the claim uses the open ended
transition language "comprising." Moreover, including Sun's induction
heater would appear to reduce the laser sintering time because the layer
would be heated by means other than the laser itself. Appellants' argument
that extending the time of laser sintering runs counter to Morris' teachings to
reduce lead time is not persuasive. Morris teaches that reducing lead time is
desirable (i14). However, ensuring that a layer has the desired phase would
appear to shorten lead time because the discard and remake cycling would
be reduced. We are not persuaded that Morris' teaching to reduce lead time
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would teach way from using a longer laser sintering time to achieve the
desired microstructure.
Regarding argument ( 5), the Examiner did not engage in
impermissible hindsight in concluding that the claimed invention given the
broadest reasonable interpretation would have been obvious over the
combined teachings of Morris and Sun. Sun teaches monitoring a material
by using HTXRD to determine how the microstructure of the layer changes
with temperature (Sun Figs. 6 & 7). We conclude that the combined
teachings of Morris and Sun would have suggested that monitoring the
crystal phases using HTXRD and controlling the laser sintering/heating to
achieve a desired phase. Accordingly, the applied prior art would have
suggested monitoring the crystal phases and controlling the heating to
achieve the desired phase.
Regarding argument ( 6), Appellants' argument amounts to arguing
that a person of ordinary skill in the art would have bodily incorporated
Sun's teaching regarding temperatures into Morris' process. Morris and Sun
use different materials, so that one of ordinary skill in the art would have
tailored the temperature to suit the particular material being treated.
Appellants' argument fails to appreciate that one of ordinary skill in the art
is a person of ordinary creativity, not an automaton. KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398,421 (2007).
On this record, we affirm the Examiner's§ 103(a) rejection of
claim 16.
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Claim 29
Claim 29 depends from claim 16 and recites that the "thickness of the
powder layer of the powder of the first material is 2 mm."
Appellants argue that Morris' teaching to use a powder layer thickness
between 15 to 50 microns does not overlap with the powdered thickness
recited in claim 29 (App. Br. 14--15). Appellants contend that there is no
prima facie case of obviousness because there is no overlap between the
thicknesses (App. Br. 15).
Appellants' argument is not persuasive because the Examiner does not
rely on overlapping ranges as a basis for concluding obviousness. Rather,
the Examiner finds that Morris teaches that the powder layer thickness may
be greater than the 15 to 50 micron example (Final Act. 8). The Examiner
finds that since the layer thickness determines the ultimate thickness of the
sintered layer, the ordinarily skilled artisan would have tailored the thickness
to suit a particular application (Final Act. 8). Appellants' arguments fail to
identify reversible error in the specific findings and conclusion of the
Examiner.
Claim 30
Claim 30 depends from claim 16 and recites
wherein the energy applied during the transforming of the
powder layer into the substrate layer has a first power per unit
area and the energy applied to correct the grain orientation of the
section of the substrate layer has a second power per unit area
that is less than the first power per unit area.
Appellants argue that none of the disclosed laser power ranges are
used to correct the grain orientation of a section of the substrate layer (App.
Br. 16). This argument is not persuasive because the broadest reasonable
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interpretation of the claim includes a process where the grain reorienting
step depends upon the detection of an improper grain microstructure. As
argued by Appellants, Morris teaches that the powder layers have the same
grain orientation as the substrate, so the condition necessary for
implementing the grain reorienting step is not satisfied. In other words, the
other limitations in the claims are met and the grain reorienting step is not
necessary in the process as taught by the combined teachings of Morris and
Sun.
Rejection (2): Claims 22and 32
Appellants argue the subject matter of claim 22 only (App. Br. 18-
20).
Appellants argue that Morris requires a particular laser beam power
per unit area and the Examiner's proposed modification to use a lower
energy per unit area would frustrate Morris' purpose of melting the specific
metal powder (App. Br. 18-19). Appellants contend that the Examiner has
not established a prima facie case of obviousness (App. Br. 19). Appellants
argue that Morris' laser power per unit area is 6250 W/cm2 which does not
overlap or lie inside the claimed laser power per unit area range of 50 W/cm2
to 150 W/cm2 (App. Br. 20).
Contrary to Appellants' arguments, the Examiner relies on the
teachings of Benda to teach that the laser power is a result effective variable
(Final Act. 11 ). The Examiner finds that Benda would have suggested
adjusting "the laser beam intensity to within the range of 50 to 150
Watts/ cm2 ... [ in order to achieve the] desired amount of heating to the
powdered layer during the laser-based sintering process of Morris and Sun"
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(Final Act. 11 ). We understand the Examiner's combination of the teachings
of Benda with Morris as modified by Sun to include using the less focused
and more focused laser beam arrangement in Benda. In other words, the
claims do not exclude using two laser beams, wherein one of them operates
at a power per unit area within the claimed range to heat the material broadly
while the more focused beam laser sinters the material. Benda teaches that
the using a split laser beam arrangement that includes a focused and
unfocused beam reduces thermal gradients and prevents curling of the
material being sintered (Benda col. 1, 11. 55-59; col. 2, 11. 49-52).
Appellants do not dispute the Examiner's finding that Benda teaches that
laser power per surface area is a result effective variable that would have
been readily optimizable (App. Br. 18-20). The combination would not
have frustrated Morris' purpose because the lower power, less focused laser
beam, would have been used with the higher power, more focused laser
beam, to sinter the material on the substrate as taught by Benda.
Rejection (3): Claim 35
Appellants argue that Morris and Tanabe do not teach forming a melt
pool of the melted metal powder and melted substrate as required by claim
35 (App. Br. 21 ). Appellants argue that Tanabe does not teach cooling a
melt pool by applying energy with a second power per unit area applied to
correct the grain orientation of the section of the substrate layer (App.
Br. 21 ). Appellants contend that Tanabe does not teach cooling a melt pool
prior to detecting the grain orientation, which is different than the grain
orientation of the substrate (App. Br. 21).
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Under the broadest reasonable interpretation noted above, the step of
correcting the grain orientation does not need to be performed as it is a
conditional step. Therefore, Appellants' argument that Tanabe does not
teach applying a second power per unit area to correct grain orientation is
not persuasive.
The Examiner finds that Morris must teach some melting of the
substrate along with the powdered layer to form a melt pool in order for the
melted powder to assume the crystal structure of the substrate (Final
Act. 13-14). The Examiner's position is reasonable in light of Morris'
teachings that the laser scan re-melts the powder layer and few micron
thickness of the substrate (i135). Appellants do not specifically identify
reversible error with that finding.
Appellants argue that Tanabe is non-analogous art because it is not in
the same field of endeavor and not reasonably pertinent to Appellants'
problem (App. Br. 22). Appellants argue that Tanabe is not in the same field
of endeavor because it does not share the same U.S. Patent Office
classification class and subclass (App. Br. 22). Appellants contend that
Tanabe is not reasonably pertinent to Appellants' problem, namely, a
method of manufacturing a component of a single crystal or a directionally
solidified material (App. Br. 22). Appellants argue that Tanabe is directed to
forming thin films on semiconductors, whereas Morris is directed to the field
of engines and turbine components for engines (App. Br. 23). Appellants
contend that the mere fact that Tanabe and Morris use laser melting does not
mean that their teachings are reasonably pertinent to a method of
manufacturing a gas turbine component (App. Br. 23).
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The Examiner finds that Tanabe's method includes laser-based
melting and recrystallization of a deposited layer, which is the exact same
process as used by Morris (Ans. 7). The Examiner finds that Tanabe is both
in the same field of endeavor as Morris and is reasonably pertinent to the
problem to be solved (Ans. 7).
The field of endeavor is determined by reference to explanations of
the invention's subject matter in the patent application, including the
embodiments, function, and structure of the claimed invention. In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004). The proper inquiry is determined by
consulting the structure and function of the claimed invention as perceived
by one of ordinary skill in the art. Id. at 1326.
In the present case, the claimed invention is forming a "component"
by laser sintering. The claims are not limited to a gas turbine component.
Indeed, the field of invention section of the Specification states, "[ t ]he
present invention relates to a method for manufacturing a component from a
single crystal or a directionally solidified material." (Spec. 1:9-11). The
disclosure and claims include a field of endeavor broader than argued by
Appellants. Therefore, we find that Tanabe's laser-melting and
recrystallization process would have been in the same field of endeavor as
Appellants' claimed invention. Like the Examiner, we also find that
Tanabe' s disclosure regarding laser sintering and recrystallization of the
melt would have been reasonably pertinent to Appellants' problem of
ensuring the desired crystal structure in the layer.
Appellants argue that combining Tanabe' s teaching to use a lower
power after melting powder would render Morris unsatisfactory for its
intended purpose (App. Br. 24). Appellants contend that proposed
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modification would entail using a second lower power scan in which the
metal powder does not melt and Morris' structure would not be formed
(App. Br 24). Appellants argue that Tanabe's teachings are specific to
silicon films and would not have been applicable to Morris' metal powders
(App. Br. 24). Appellants argue that Tanabe uses pulse laser parameters,
which would not have been applicable to Morris' continuous-wave
parameters (App. Br. 24).
Appellants' arguments are not persuasive because these arguments
would require us to find that one of ordinary skill in the art would have
bodily incorporated Tanabe's parameters into Morris' method without
regard for the material being processed. A person of ordinary skill in the art
is a person of ordinary creativity, not an automaton. KSR, 550 U.S. at 421.
The Examiner finds that Tanabe teaches the benefits of using lower laser
power during cooling of the melt to encourage recrystallization (Final
Act. 14). A person of ordinary skill in the art would have tailored the laser
parameters to the particular material in order to achieve the desired benefits
taught by Tanabe (i.e., forming a crystalline material rather than a
mi crocrystalline material).
On this record, we affirm the Examiner's§ 103(a) rejections (1) to (3)
listed above.
DECISION
The Examiner's decision is affirmed.
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).
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AFFIRMED
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