Ex Parte DANYO et al

Patent Trial and Appeal Board

Nov 26, 2018

14189179 (P.T.A.B. Nov. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/189,179 02/25/2014
28395 7590 11/28/2018
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Michael William DANYO
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.
83385285 8609
EXAMINER
YANG,JIE
ART UNIT PAPER NUMBER
1733
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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL WILLIAM DANYO, NIA R.
HARRISON, and S. GEORGE LUCKEY JR.
Appeal2018-001926
Application 14/189, 179 1
Technology Center 1700
Before ROMULO H. DELMENDO, WESLEY B. DERRICK, and BRIAN
D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 2, and 4--16. We have jurisdiction under 35
U.S.C. § 6(b ).
We AFFIRM.
1 Appellant is the Applicant, Ford Global Technologies, LLC, which
according to the Appeal Brief, is also the real party in interest. Appeal Br. 2.
Appeal2018-001926
Application 14/189, 179
STATEMENT OF THE CASE2
Appellant describes the invention as relating to the rolling of high
strength aluminum alloys, such as 6xxx and 7xxx3 series alloys. Spec. ,r 1.
Claim 1, reproduced below with emphasis added to key recitations, is
illustrative of the claimed subject matter:
1. A method of processing a coil of aluminum alloy
compnsmg:
uncoiling a coil of O or F-temper 7xxxx series aluminum alloy;
tailored rolling the alloy to form a tailored rolled sheet
having at least two different thicknesses along its length;
blanking the tailored rolled sheet to form a tailored rolled blank;
hot stamping the tailored rolled blank to form a component; and
age hardening the component.
Appeal Br. App. 1 (Claims App.) (emphasis added).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
2 In this Decision, we refer to the Non-Final Office Action dated October 19,
2016 ("Non-Final Act."), the Final Office Action dated March 22, 2017
("Final Act."), the Appeal Brief filed August 15, 2017 ("Appeal Br."), the
Examiner's Answer dated October 13, 2017 ("Ans."), and the Reply Brief
filed December 12, 2017 ("Reply Br.").
3 The Specification appears to use the terms "7xxxx" and "7xxx"
interchangeably. The Specification indicates that 7075 aluminum alloy is an
example of "7xxxx" alloy. Spec. ,r 10. Appellant's use of "7xxxx" appears
to be a typographical error. In any event, Appellant makes no argument
distinguishing 7xxxx and 7xxx aluminum alloy, and the preponderance of
the evidence (see, e.g., Spec. ,r 10) indicates they are the same for purposes
of this decision.
2
Appeal2018-001926
Application 14/189, 179
Avellone
Chakrabarti et al.
("Chakrabarti")
Luckey et al.
("Luckey")
us 3,352,005
US 6,972,110 B2
US 8,496,764 B2
Nov. 14, 1967
Dec. 6, 2005
July 30, 2013
Hirt et al., Manufacturing of Sheet Metal Parts from Tailor Rolled Blanks,
30 J. for Tech. of Plasticity, No. 1-2 (2005) ("Hirt").
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1, 2, 4--7, 10-14, and 16 under 35 U.S.C. § 103
as unpatentable over Luckey in view of Hirt. Final Act. 3; Non-Final Act. 3.
Rejection 2. Claims 8 and 15 under 35 U.S.C. § 103 as unpatentable
over Luckey in view of Hirt and further in view of Chakrabarti. Final Act.
3; Non-Final Act. 5.
Rejection 3. Claim 9 under 35 U.S.C. § 103 as unpatentable over
Luckey in view of Hirt and further in view of Avellone. Final Act. 4; Non-
Final Act. 6.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t
has long been the Board's practice to require an applicant to identify the
alleged error in the examiner's rejections."). After considering the evidence
presented in this Appeal and each of Appellant's arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
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Application 14/189, 179
Examiner's rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Appellant argues all rejections together and argues all claims as a
group. See Appeal Br. 3-5. Therefore, consistent with the provisions of
37 C.F.R. § 4I.37(c)(l)(iv) (2013), we limit our discussion to claim 1, and
all other claims on appeal stand or fall together with claim 1.
The Examiner finds that Luckey teaches, for example, uncoiling,
blanking, hot stamping, and age hardening of 7xxx aluminum alloy. Non-
Final Act. 4; Final Act. 3 (referencing Non-Final Act.); see also, e.g.,
Luckey Fig. 3, 2: 1-2. The Examiner finds that Luckey does not explicitly
teach tailored rolling prior to blanking. Non-Final Act. 4. The Examiner
finds, however, that Hirt teaches tailored rolling. Id.; see also Hirt Title,
Abstract, Figs. 1-3. The Examiner determines that it would have been
obvious to tailor roll an aluminum sheet, "as demonstrated by [Hirt] in the
process of [Luckey] in order to obtain desired light weight construction
(abstract of [Hirt])." Non-Final Act. 4.
Appellant argues that neither Luckey nor Hirt teaches hot stamping
tailored rolled blanks. Appeal Br. 4. This argument is unpersuasive because
it addresses the references individually rather than addressing the
Examiner's rejection based upon the combined teachings of the references.
"Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellant argues that "attacking references individually" is an
unpersuasive argument only where an applicant fails to present an argument
about a reference. Reply Br. 2. We disagree. Here, the Examiner found
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Application 14/189, 179
that Luckey taught all steps of claim 1 but did not explicitly teach tailored
rolling. Non-Final Act. 4. The Examiner's rejection was therefore based
upon incorporating the tailored rolling taught by Hirt into Luckey. Id.
Appellant's argument against the two references individually is unpersuasive
because it does not, for example, persuasively explain why a person of
ordinary skill in the art, after combining the teachings of the references in
the manner suggested by the Examiner, would not reach a process with tailor
rolling (as in Hirt), blanking (as in Luckey), and stamping (as in Luckey).
Appellant's argument also does not persuasively identify error in the
Examiner's findings regarding either one of the individual references.
Rather, the preponderance of the evidence supports the Examiner's findings
concerning the individual references, and the combined teachings of Luckey
and Hirt suggest stamping of tailor rolled blanks.
Appellant also argues that it would not have been obvious to modify
Luckey in view of Hirt. In particular, Appellant argues that "conventional
wisdom in the art has been that tailored rolling of high strength, age
hardening aluminum alloys ( e.g., 7xxx aluminum) is not feasible,
particularly with a high-volume throughput." Appeal Br. 4. Appellant's
argument is unpersuasive because it is not supported by evidence.
"[ A ]rguments of counsel argument cannot take the place of evidence lacking
in the record." Estee Lauder Inc. v. L 'Orea!, S.A., 129 F.3d 588, 595 (Fed.
Cir. 1997) (internal quotes and citation omitted); In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997) (requiring evidence of unexpected results).
Appellant relies on the Specification as teaching that it is not possible
to use conventional methods to perform tailored rolling on 7xxx series
aluminum alloy "with high volume throughput." Spec. ,r 28; Appeal Br. 4--
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5. This disclosure, however, in no way forecloses that conventional methods
could allow tailored rolling on such aluminum at low volume throughput.
See also Spec. ,r 28. (indicating that a continuous annealing and solution heat
treatment furnace ("CASH") process is incompatible with tailored rolling
but also that the CASH process is only needed "[i]n industries that require
high volume throughputs at acceptable costs"). Moreover, the Examiner
finds that Hirt generally teaches the advantage of tailored rolling for
aluminum alloys without any limitation as to 7xxx aluminum alloy (Ans. 4),
and Appellant does not persuasively dispute this finding. Claim 1 is not
limited to high volume throughput operations, and a preponderance of the
evidence indicates that conventional methods could achieve tailored rolling
on 7xxx series aluminum alloys (at very minimum, at low throughput).
Appellant's argument is also unpersuasive because it does not rebut
the Examiner's stated reason why a person of ordinary skill in the art would
have combined the references' teachings. The Examiner determines that a
person of ordinary skill in the art would have applied Hirt's tailored rolling
teachings to the process of Luckey to obtain desired light weight
construction. Non-Final Act. 4; Ans. 4. Appellant argues that the Examiner
provided no evidence to support this reasoning. Appellant is incorrect. The
Examiner cited Hirt's abstract as supporting this reasoning. Non-Final Act.
4; Ans. 4. The Examiner's citation is appropriate; Hirt's abstract states that
lightweight construction is important. Hirt 1. Lightweight construction is
especially important, for example, in the aerospace industry due to the effect
of a vehicle's weight on fuel efficiency. Id. at 2; see also Luckey 1: 15-27
(indicating its process is appropriate for aerospace).
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Appellant further argues that there would be no reason to try to make
Luckey's aluminum lightweight because aluminum is already light weight.
But Hirt indicates that for many applications ( such as aerospace), there is a
desire to further reduce weight of aluminum structures via tailored rolling.
Hirt 1 ("Their [tailor rolled blanks'] load optimi[z]ed structure enables new
approaches in lightweight construction."); see also Luckey 6:47-51
( teaching that lighter vehicle weight "may result in reduced fuel
consumption and energy conservation").
Because Appellant's arguments do not identify reversible Examiner
error we sustain the Examiner's rejections.
DECISION
For the above reasons, we affirm the Examiner's rejections of
claims 1, 2, and 4--16.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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