Ex Parte Langan et al

Patent Trial and Appeal Board

Mar 29, 2013

11706806 (P.T.A.B. Mar. 29, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/706,806 02/14/2007 Timothy Langan STTI 67706 6036
29694 7590 03/29/2013
PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI LLP
ONE OXFORD CENTRE, 38TH FLOOR
301 GRANT STREET
PITTSBURGH, PA 15219-6404
EXAMINER
LEE, REBECCA Y
ART UNIT PAPER NUMBER
1734
MAIL DATE DELIVERY MODE
03/29/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte TIMOTHY LANGAN, W. MARK BUCHTA,
DAVID M. OTTERSON, and MICHAEL A. RILEY
____________________

Appeal 2012-001562
Application 11/706,806
Technology Center 1700
____________________

Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and
DONNA M. PRAISS, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1-7, 9, 11-18, 20, 22-25, 28-31, 41, and 42. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The claims are directed to a method of making a reactive intermediary
material (Claim 1) and a method of making a metal aluminide from the
reactive intermediary (Claims 11 and 29).
Appeal 2012-001562
Application 11/706,806

2
All of the Examiner’s rejections rely upon Sampath1 as evidence of
anticipation and obviousness. With respect to the independent claims, the
Examiner rejects independent claim 1 under 35 U.S.C. § 102(b) as
anticipated by Sampath, and independent claims 11 and 29 under 35 U.S.C.
§ 103(a) as obvious over Sampath.
As pointed out by Appellants, claim 1 requires a step of thermally
spraying “individual powders of a precursor metal and aluminum”. Claim 1
is reproduced below:
1. A method of making a reactive material comprising
thermally spraying individual powders of a precursor
metal and aluminum in the presence of oxygen
to partially oxidize the precursor metal in flight and
to produce a reactive intermediary material comprising
the precursor metal, an oxide of the precursor metal, and the
aluminum.
(Claims App’x of the Br. 1 (indenting and emphasis added).)
Appellants contend that Sampath does not teach thermally spraying
“individual powders” of a precursor metal and aluminum, rather Sampath
thermally sprays a composite starting material (Br. 5). We agree.
The phrase “individual powders of a precursor metal and aluminum”
must be interpreted in a manner consistent with how one of ordinary skill in
the art would interpret the phrase in light of the Specification. Turning to
the Specification, we note that it describes thermally spraying a powder of
Ni and a powder of Al, the powders having been mixed together to create a
feedstock powder (Spec. ¶¶ [0043-44]; [0052]; and Fig. 2). The phrase

1“Plasma sprayed Ni-AI coatings”, Surface Engineering, 5(4), 293-298,
1989.
Appeal 2012-001562
Application 11/706,806

3
“individual powders” refers to a powder of the precursor metal (Ni) that is
separate from a powder of aluminum. Sampath’s composite powders consist
of particles of one metal clad with another metal, i.e., Al clad Ni and Ni clad
Al (Sampath, p. 293 (Experimental, ¶ 1).
Claim 1 does not encompass thermally spraying the composite
powder of Sampath. Therefore, we cannot sustain the rejection of claim 1.
Because the error permeates all the rejections of those claims depending
from claim 1, we further do not sustain those rejections.
Claims 11 and 29 do not contain the “individual powders” limitation.
Claim 11 reads:
11. A method of making a metal aluminide material
comprising:
thermally spraying precursor metal and aluminum in the
presence of oxygen to produce a reactive intermediary material
comprising the precursor metal, an oxide of the precursor metal,
and aluminum; and
initiating a reaction of the reactive intermediary material
to react the precursor metal and the aluminum together to form
the metal aluminide material.
(Claims App’x of the Br. 1.)
Claim 29 requires a similar step of “heating a reactive intermediary
material . . . to initiate an exothermic reaction of the reactive intermediary
material which forms the metal aluminide material, wherein the metal
aluminide material comprises a matrix with Al2O3 precipitates dispersed
therein.”
It is the Examiner’s position that “one skilled in the art would have
envisaged, or found it obvious to expect, that the product obtained by
Appeal 2012-001562
Application 11/706,806

4
Sampath et al. to be substantially identical with that of claimed, since
Sampath et al. teach a substantially identical process with a substantially
identical starting materially as claimed.” (Ans. 8.)
Appellants contend that Sampath does not teach or suggest the
reactive intermediary material or its reaction to form metal aluminide (Br. 6-
7). Appellants point out that Sampath’s Table 3 shows that “the only metal
aluminide materials formed resulted from the vacuum plasma spray process
(VPS).” (Br. 7.) Because VPS contains no oxygen, it does not meet the
requirements of the claim.
The evidence supports the position of Appellants. Sampath thermally
sprays (air plasma spraying (APS)) a precursor metal (Ni) and aluminum
(Al) (composite Al clad Ni powder or Ni clad Al powder). There is some
evidence that the metal precursor (Ni) reacts to form nickel oxides (¶
bridging pp. 295-96; Table 3). However, Sampath’s X-ray diffractometry
(XRD) and electron microprobe analysis (EMPA) data indicates that no
aluminide is created (Table 3). Therefore, Sampath does not appear to be
“initiating a reaction of the reactive intermediary material to react the
precursor metal and the aluminum together to form the metal aluminide
material” as required by claim 11 or the reacting step of claim 29.
We, therefore, do not sustain the rejection of either claim 11 or claim
29 as obvious over Sampath. Moreover, because the error permeates all the
rejections of the claims depending from claims 11 and 29, we do not sustain
the rejection of those claims, either.
CONCLUSION
We do not sustain the Examiner’s rejections.
Appeal 2012-001562
Application 11/706,806

5
DECISION
The Examiner’s decision is reversed.
REVERSED

kmm