Ex Parte Withers et al

Board of Patent Appeals and Interferences

Feb 29, 2012

12189658 (B.P.A.I. Feb. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JAMES C. WITHERS and
VLADIMIR SHAPOVALOV
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Appeal 2012-001421
Application 12/189,658
Technology Center 1700
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Before EDWARD C. KIMLIN, LINDA M. GAUDETTE, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-6, 14, 23, 24, 32,
33, 50 and 51. We have jurisdiction under 35 U.S.C. § 6(b).
Claims 1 and 6 are illustrative:
1. A method for producing porous materials which method comprises:

directing a plasma stream containing particles of a base material in
liquid or solid and liquid form, or in liquid form having a gas dissolved
therein onto a substrate under controlled conditions while establishing
relative movement between the plasma stream and the substrate, and
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controlling cooling speed and cooling direction to solidify the deposited
material, whereby the material is deposited as a porous structure of desired
porosity and shape,

wherein a desired porosity and shape is formed by at least one of: (1)
particles spot welding to the substrate or to one another, and (2) gas evolving
from the solidifying deposited material.

6. A method for forming a porous article or porous coatings comprising
the steps of:

(A) providing a base material in powder form having predetermined
particle size;

(B) feeding the base material particles to a high energy device
selected from the group consisting of a plasma jet, a plasma torch, a laser, a
concentrated solar light device, and an electric arc device whereby to heat
the base material particles to melt at least some of said particles, and
directing the heated base material particles onto a target area on a substrate
under conditions where the base material particles spot weld to the substrate
surface and between themselves without full fusion;

(C) controlling particle heating speed, particle heating time, and
particle temperature to cause said particles to spot-weld on the substrate with
a predetermined structure and predetermined porosity;

(D) cooling the deposited material to cause local liquid spot
solidification and form a gas-solid rigid structure in layer form;

(E) heating a layer material in powder form having a predetermined
size;

(F) heating the layer material particles to melt at least some of said
layer material particles, and directing the heated layer material particles onto
a target area of previously deposited material, under conditions where the
layer material particles spot weld to previously deposited material and
between themselves without full fusion;

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(G) controlling layer material particle heating speed, layer material
particle heating time, and layer material particle temperature to cause said
layer material particles to spot-weld on previously deposited material with a
predetermined structure and predetermined porosity; and

(H) cooling the deposited layer material to cause local liquid spot
solidification and form a gas-solid rigid structure in layer form;

(I) repeating steps E-H whereby material is deposited as a porous
structure of desired porosity and shape.

The Examiner relies upon the following references as evidence of
obviousness (Ans. 6):
Ragaller 3,803,380 Apr. 09, 1974
Coucher 3,909,068 Sep. 30, 1975
Novak 4,686,320 Aug. 11, 1987
Phillippi 4,721,533 Jan. 26, 1988
Jaskowiak 6,327,452 B1 Dec. 04, 2001
Kirchner 6,537,605 B1 Mar. 25, 2003
Zurecki 2006/0228465 A1 Oct. 12, 2006
Laudenklos DE 19842608 A1 Sep. 17, 1998

Appellants’ claimed invention is directed to a method for producing
porous materials on a substrate by directing a plasma stream of particles of a
base material onto the substrate while establishing relative movement
between the plasma stream and the substrate. The cooling speed and cooling
direction is controlled to solidify the deposited material (claim 1).
Independent claim 6 recites controlling the heating speed, heating time and
temperature of the material particle during deposition. The porosity and
shape of the deposited material is formed by spot welding the particles to the
substrate or to one another.
The Examiner’s final rejection contained 24 separate rejections which
are listed at pages 13 through 16 of Appellants’ Principal Brief. The
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Examiner has withdrawn the rejections listed (1)-(8) by Appellants (see Ans.
4-5). The Examiner’s separate rejections of independents claims 1 and 6 are
as follows:
(a) Claims 1-3 and 23 under 35 U.S.C. § 103(a) as being unpatentable
over Novak in view of Zurecki,
(b) Claims 1-3 and 23 under 35 U.S.C. § 103(a) as being unpatentable
over Novak and Jaskowiak in view of Zurecki,
(c) Claims 6 and 24 under 35 U.S.C. § 103(a) as unpatentable over
Novak in view of Zurecki and Phillippi,
(d) Claims 6 and 24 under 35 U.S.C. § 103(a) as being unpatentable
over Novak in view of Jaskowiak in further view of Zurecki and
Phillippi.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s § 103 rejections for essentially
those reasons expressed in the Answer, and we add the following primarily
for emphasis.
We consider first the § 103 rejection of claims 1-3 and 23 over Novak
in view of either Zurecki or Jaskowiak in combination with Zurecki. Novak,
like Appellants, discloses a method of producing porous materials on a
substrate by directing a plasma stream containing particles of a base material
in liquid form onto the substrate while establishing relative movement
between the plasma stream and the substrate, and controlling various
parameters to obtain the desired level of porosity (see col. 7, ll. 3-48).
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Novak teaches that the deposition process is controlled to produce a range of
porosity from about 10 to about 30 volume percent (col. 7, ll. 39-42).
A principal argument of Appellant is that the method of Novak does
not achieve the claimed spot welding of the particles to the substrate or to
one another. Appellants cite Wikipedia for a description of “Thermal
Spraying” which describes the deposited material as consisting of a
multitude of pancake-like lamellae, and assert that the claimed method is
quite different inasmuch as one of ordinary skill in the art would recognize
that spot welding particles together means “to weld (two pieces of metal)
together in a small area or spot by the application of heat and pressure”
(App. Br. 21 quoting Random House Dictionary). However, Appellants
have not explained why the deposition process of Novak, even if it deposits
lamellae, does not qualify as a spot welding process wherein small areas of
the particles are welded or fused by heat and pressure to either the substrate
or each other in order to form pores. We agree with the Examiner that it is
reasonable to conclude that the porous material of Novak is formed by
welding small areas of the deposited particles to either each other or the
substrate, or both. Appellants have advanced no countervailing argument,
let alone supporting objective evidence. In the words of the Examiner,
“[t]hese [lamellae] would weld or join to the surface they[]
impact (substrate or other particles) with heat (since molten)
and pressure (since the spray form the plasma jet provides
impact with at least a certain amount of pressure from the
velocity of the particles), and would have to weld or join to the
surface/other particles, or the particles would simply come apart
and off the surface and a usable coated article would not occur,
note column 9, lines 55-60”

(Ans. sentence bridging 44-45).
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Appellants do not challenge the Examiner’s legal conclusion that it
would have been obvious to control the cooling speed and cooling direction
of Novak’s deposited particles in view of the teachings of Zurecki and
Jaskowiak that such control of the cooling alleviates stress in the formed
material and provides for a uniform deposition. Rather, it is Appellants’
contention that Zurecki and Jaskowiak do not disclose that the controlled
cooling effects the porosity of the deposited material.
We concur with the Examiner that the claim language on appeal does
not require that “the cooling speed and direction must be controlled in such a
manner that the cooling process has a desired and predetermined effect on
the porosity and shape of the resulting porous structure” (Ans. 42, first
para.). While claim 1 recites the steps of directing a plasma stream,
establishing relative movement between the plasma stream and the substrate,
and controlling the cooling speed and cooling direction to solidify the
deposited material, we agree with the Examiner that the claim does not
require that any one of these steps are actually controlled specifically for the
purpose of controlling the resulting porosity and shape (see Ans. 42, last
para.). As noted by the Examiner, the last paragraph of claim 1 sets forth
that the desired porosity and shape is formed by at least one of particle spot
welding and gas evolving from the deposited material. As for Appellants’
arguments in the Reply Brief which direct our attention to passages in the
Specification, it is well settled that limitations in a Specification are not to be
read into the claims.
Turning to the rejection of independent claim 6 which recites
controlling particle heating speed, particle heating time and particle
temperature, we agree with the Examiner that Novak teaches such controls.
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Appellants acknowledge that Novak teaches controlling the flame
composition, powder flow rate, powder flow viscosity, distance of a spray
onto the substrate, and rotation speed of the substrate. We disagree with
Appellants, however, that such controls are not tantamount to controlling the
particle heating speed, particle heating time and particle temperature. The
Examiner’s analysis at pages 51-52 of the Answer explains how such
controls effectively provide the claimed controls. For example, Novak
discloses how the powder feed rate effects the temperature of the deposited
particles (col. 9, ll. 54-63).
Appellants do not present separate substantive arguments against the
Examiner’s rejections of the dependent claims.
As a final point, we note that Appellants base no argument upon
objective evidence of non-obviousness, such as unexpected results.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims 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)(1)(iv).
AFFIRMED

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