Ex Parte Bausch et al

Patent Trial and Appeal Board

Dec 22, 2015

12733062 (P.T.A.B. Dec. 22, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121733,062 02/03/2010
38137 7590 12/22/2015
ABELMAN, FRAYNE & SCHWAB
666 THIRD A VENUE, 1 OTH FLOOR
NEW YORK, NY 10017
FIRST NAMED INVENTOR
Joerg Bausch
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.
210,668 9417
EXAMINER
YUEN, JACKY
ART UNIT PAPER NUMBER
1735
MAILDATE DELIVERY MODE
12/22/2015 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 JOERG BAUSCH and JOCHEN WANS
Appeal2014-009546
Application 12/733,062 1
Technology Center 1700
Before BRADLEY R. GARRIS, ROMULO H. DELMENDO, and
JEFFREY W. ABRAHAM, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants seek our review under 35 U.S.C. § 134(a) of a final
decision of the Primary Examiner to reject claims 12-14. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Appellants state that the real party in interest is "SMS SIEMAG
Aktiengesellschaft" (Appeal Brief filed March 7, 2014, hereinafter "App.
Br.," 2).
Appeal2014-009546
Application 12/733,062
BACKGROlH~D
The Appellants state that the current appeal is related to Appeal 2013-
009886 (Application 13/181,719 filed July 13, 2011) (App. Br. 3), which is
also assigned to this Board panel. According to PTO records, Application
13/181, 719 is a divisional application of the current application.
The subject matter on appeal relates to a method for operating a
caster, in particular, a caster for casting liquid steel (Specification,
hereinafter "Spec.," 1, 11. 3-5). The caster is illustrated in Figure 1 of the
application, as follows:
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FIGJ
Figure 1 above shows a cross-sectional schematic view of a caster (1)
including, inter alia: a casting ladle (2); a tundish (3); a distribution device
(4); a horizontal conveyor belt (5); an inert gas hood (8); at least one cooling
device (9); and side limiting elements (13, 14) (id. at 6, 1. 10-7, 1. 13).
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Appeal2014-009546
Application 12/733,062
Representative claim 12 is reproduced from page 13 of the Appeal
Brief (Claims App.), as follows:
12. A method of operating a caster having a
horizontally displaceable conveyor belt provided with side
limitation elements, and a tun dish arranged at one end of the
conveyor belt above a plane of the conveyor belt for supplying
molten metal onto the conveyor belt, the method comprising the
steps of providing a distribution device having an adjustable
width and located beneath the tundish in the plane of the
conveyor belt for horizontally delivering the molten metal from
the tundish onto the conveyor belt; and variably adjusting a
width between the side limitation elements over a width of the
conveyor belt at an angle of 90° to a cast direction, while
material is being cast between the side limitation elements, in
accordance with the width of the distribution device and with a
predetermined width of a cast product.
THE REJECTIONS
The Examiner rejected the claims under 35 U.S.C. § 103(a) as
follows:
I. Claims 12 and 13 as unpatentable over Pleschiutschnigg, 2
Matoba et al. (Matoba), 3 Shio et al. (Shio), 4 and Asari et al.
(Asari); 5 and
II. Claim 14 as unpatentable over Pleschiutschnigg, Matoba, Shio,
Asari, and Johansson et al. (Johansson). 6
2 DE 198 52 275 C2 published May 25, 2000 (machine-generated translation
of record).
3 US 4,600,047 issued July 15, 1986.
4 JP 7-8415 published February 1, 1995 (translation of record).
5 US 4,727,925 issued March 1, 1988.
6 US 5,538,071 issued July 23, 1996.
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Appeal2014-009546
Application 12/733,062
(Examiner's Answer mailed July 15, 2014, hereinafter "Ans.," 2---6; Final
Office Action mailed November 20, 2013, hereinafter "Final Act.," 3-8.)
DISCUSSION
The Appellants focus their arguments on claim 12 (App. Br. 5-11)
and state that claims 13 and 14 stand or fall with claim 12 (id. at 11).
Therefore, consistent with 37 C.F.R. § 41.37(c)(l)(iv), we confine our
discussion to claim 12, and that discussion controls our decision for all
claims on appeal.
The Examiner found that Pleschiutschnigg describes a method for
operating a caster including a horizontally displaceable conveyor belt with
side limitation elements and a ladle arranged at one end of the conveyor belt
above a plane of the conveyor belt for supplying molten metal onto the
conveyor belt, wherein the method comprises a step of providing a
distribution device located beneath the ladle in the plane of the conveyor belt
for horizontally delivering the molten metal from the ladle onto the conveyor
belt (Final Act. 3). The Examiner found that Pleschiutschnigg's method
differs from the method recited in claim 12 in three respects: (i) the prior art
caster does not include a tundish; (ii) the prior art distribution device does
not have an adjustable width; and (iii) the prior art method does not include
a step of "variably adjusting a width between the side limitation elements
over a width of the conveyor belt .... " in the manner as specified in claim
12 (id. at 3--4). The Examiner found further, however, that Matoba (cited to
show the use of a tundish for providing a smooth and controlled flow of
molten metal), Shio (cited to show a swingable-i.e., adjustable-trough
side plates), and Asari (cited to show the use of dam blocks to enable the
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Appeal2014-009546
Application 12/733,062
width of a cast piece to be altered while casting work is continuing) all
provide teachings that would have prompted a person of ordinary skill in the
art to combine the references in the manner claimed by the Appellants (id. at
3-5).
The Appellants contend that, in Pleschiutschnigg, the width of the cast
product is defined by the geometrical shape of the nozzle and, therefore, "[i]t
is unclear how swinging the nozzle [as may be suggested by Shio] would
change the width of the cast strip" (App. Br. 7). According to the
Appellants, "making the nozzle swingable would require a complete
redesign of the Pleschiutschnigg structure" because "in Pleschiutschnigg[,]
the nozzle is associated with the side limitation means (segments) which
cannot be adjusted while the pre-strip is being cast" (id.). The Appellants
also argue that, in Asari, "the width of the nozzle is not adjusted in a
direction transversed [sic] to the cast direction during casting of the product
strip" (id. at 8). According to the Appellants (id. at 9), the Examiner failed
to articulate a reason for combining Asari with the other references,
including Pleschiutschnigg.
The Appellants' arguments are not sufficient to identify a reversible
error in the Examiner's rejection of claim 12. In re Jung, 637 F.3d 1356,
1365 (Fed. Cir. 2011) ("[E]ven assuming that the examiner had failed to
make a prima facie case, the Board would not have erred in framing the
issue as one of 'reversible error."').
1. Distribution Device Having an Adjustable Width Issue
As found by the Examiner (Final Act. 4; Ans. 3), Shio teaches a belt-
type continuous caster for continuously casting a metal strip in which molten
metal is discharged onto the belt through trough side plates (17, 18) that are
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Appeal2014-009546
Application 12/733,062
swingable such that molten metal can be poured "uniformly in the width
direction to the collecting unit corresponding to the strip width changed"
(translation at 2, 4; Figures 1-3). Thus, modifying Pleschiutschnigg's
nozzle to be swingable, as suggested by Shio, would not be "intended to
change the width of the cast strip" (Ans. 3) but, rather, to facilitate uniform
pouring of the molten metal depending on the variable width of the cast
strip, thereby improving quality, without "having to replace the trough every
time the width of the cast strip is changed" (id. at 3--4).
Although the Appellants assert that a person of ordinary skill in the art
would not have combined Pleschiutschnigg and Shio because a major
redesign of Pleschiutschnigg's device would have been required, that
assertion is not supported by any creditable evidence or persuasive technical
reasoning and is therefore mere attorney argument that is entitled to little or
no weight. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). See also
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) ("The combination
of familiar elements according to known methods is likely to be obvious
when it does no more than yield predictable results."); id. at 417 ("[I]f a
technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill.").
Therefore, we find no basis to overrule the Examiner's rejection based
on the Appellants' arguments concerning the "distribution device having an
adjustable width" claim limitation.
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Application 12/733,062
2. Variably Adjusting a Width Between Side Elements Issue
As indicated above, the Appellants argue that, in Asari, "the width of
the nozzle is not adjusted in a direction transversed [sic] to the cast direction
during casting of the product strip" (App. Br. 8). But, as pointed out by the
Examiner (Ans. 5), claim 12 does not recite any requirement that the width
of the nozzle must be adjusted or is adjustable in a direction transverse to the
casting direction. Rather, claim 12 recites in relevant part: "variably
adjusting a width between the side limitation elements over a width of the
conveyor belt at an angle of 90° to a cast direction" (App. Br. 13) (emphasis
added).
To the extent that the Appellants intended to argue that "Asari ...
does not disclose adjusting a width between the side elements over a width
of the conveyor belt at an angle of 90Q to a cast direction" (Reply Brief filed
September 5, 2014 at 3), we find it unpersuasive. As found by the Examiner
(Final Act. 5; Ans. 4), Asari teaches plainly that the width of a cast piece
may be altered by moving side dams in the transversal direction while
casting work is continuing (col. 1, 11. 5--40; col. 3, 11. 44--48; col. 4, 1. 11---col.
5, 1. 29; Fig. 3). That teaching would have prompted a person of ordinary
skill in the art to implement Asari' s transversally movable side dams in
Pleschiutschnigg' s caster.
For these reasons, we find no basis to overrule the Examiner's
rejection based on the Appellants' arguments against the Examiner's
reliance on Asari in support of the obviousness conclusion.
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Appeal2014-009546
Application 12/733,062
survnvIARY
Rejections I and II are affirmed. Therefore, the Examiner's final
decision to reject claims 12-14 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)(l ).
AFFIRMED
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