13163285 (P.T.A.B. Jul. 22, 2016)

Ex Parte Geusic

Patent Trial and Appeal BoardJul 22, 2016

13163285 (P.T.A.B. Jul. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/163,285 06/17/2011 Joseph E. Geusic 73115 7590 07/26/2016 SCHWEGMAN LUNDBERG & WOESSNER/MICRON P.O. BOX 2938 MINNEAPOLIS, MN 55402 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. 1303.086US3 9340 EXAMINER ADKINS, CHINESSA T ART UNIT PAPER NUMBER 1788 NOTIFICATION DATE DELIVERY MODE 07/26/2016 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@slwip.com SLW@blackhillsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSEPH E. GEUSIC Appeal2014-002402 Application 13/163,285 Technology Center 1700 Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and JAMES C. HOUSEL, Administrative Patent Judges. TIMM, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF CASE Appellant2 appeals the Examiner's decision to reject claims 1 and 3- 21. We have jurisdiction under 35 U.S.C. Â§Â§ 6(b) and 134(a). 1 In our opinion below, we refer to the Specification filed June 17, 2011 (Spec.), Final Office Action filed February 22, 2013 (Final), the Appeal Brief filed August 16, 2013 (Appeal Br.), the Examiner's Answer filed October 4, 2013 (Ans.), and the Reply Brief filed December 4, 2013 (Reply Br.). 2 Appellant identifies the real party of interest as Micron Technology, Inc. Appeal Br. 2. Appeal2014-002402 Application 13/163,285 We AFFIRM. The claims are directed to a structure of cellular material either with a uniform density (see, e.g., claim 1) or engineered to include a site with a desired, predictable mechanical failure for a given force within the structure of cellular material (see, e.g., claim 12). The cellular material has a precisely-determined arrangement of voids. Spec. 1 :25-26. Appellant uses a process, termed a surface transformation process, to form the voids. Figures lA-lF illustrate the process and are reproduced below: Figures IA through 1 F are sequential depictions of a process of forming a void in a volume of solid material The surface transformation process starts with the step of forming a cylindrical hole 110 in a volume of solid material 114 as shown in Figure IA. After forming the cylindrical hole 110, the material is heated (annealed), which causes the cylindrical hole to transform into an empty sphere as shown in Figures lB to IF. Spec. 9:11-21. In the process shown in Figures lA-lF, the cylindrical hole 110 forms one empty sphere. Fig. IF. It is also possible to form multiple voids. See, e.g., Figure 4E, reproduced below: 2 Appeal2014-002402 Application 13/163,285 ~\ti .. \ ,.. ........................... ,,. .......................................... , ............... 'V-f~ ......... ... i . ,_. ... ; : Figure 4E is an illustration of three voids (spheres 116) formed from initial cylindrical hole 410 The number of voids (empty spheres 416) formed depends on the length (L) and radius (Re) of the cylindrical hole (410). Spec. 8:5-7. If the cylindrical hole 410 has sufficient length L to form two spheres, the center- to-center spacing between the spheres corresponds to the critical length (A.e). Spec. 8:15-16. Figure 4E shows, in dashed lines, a cylindrical hole 410 having a length 3A.c and radius (Re) such that the cylindrical hole forms three (3) surface-transformed spheres 416 (voids). Appellant claims the separation between the voids in terms of a critical length that is dependent on the radius Re (RC in the claims) of a number of holes (e.g., 110 in Fig. IA or 410 in Fig. 4E) used to form the plurality of voids. Thus, the claims require multiple voids as shown in, for instance, Figures 4C through 4E. 3 Appeal2014-002402 Application 13/163,285 Claim 1, with reference numerals inserted from Figure 4E, is further illustrative: 1. A structure of cellular material with a uniform density, compnsmg: a structure of material having a well-defined melting temperature and a well-defined annealing temperature below the melting temperature suitable to perform a surface transformation process, wherein the structure is engineered to include a desired arrangement of a plurality of voids [ 416] to transform the structure of material into the structure of cellular material with the uniform density, the plurality of voids [ 416] within the structure separated by a critical length (A.c) that is dependent on the radius (RC) of a number of holes [dashed lines 41 OJ used to form the plurality of voids [ 416] using the surface transformation process, wherein a majority of the plurality of voids [416] within the structure are closed and spaced to engineer the structure of cellular material with the uniform density. Claims Appendix, Appeal Br. 27. The Examiner maintains the following rejections: A. The rejection of claims 1, 3, 9, 10, 12, 15, and 21under35 U.S.C. Â§ 103(a) as obvious over Tung; 3 B. The rejection of claim 4 under 35 U.S.C. Â§ 103(a) as obvious over Tung in view of Patten;4 C. The rejection of claims 1, 3, and 5-21under35 U.S.C. Â§ 103(a) as obvious over Mullen;5 3 Tung et al., US 4,678,695, patented July 7, 1987. 4 Patten, US 4,099,961, patented July 11, 1978. 5 Mullen et al., US 5,890,268, patented Apr. 6, 1999. 4 Appeal2014-002402 Application 13/163,285 D. The rejection of claim 4 under 35 U.S.C. Â§ 103(a) as obvious over Mullen in view of Patten; and E. The rejection of claim 4 under 35 U.S.C. Â§ 103(a) as obvious over Mullen in view of Sobel. 6 OPINION Rejections A and B With regard to the rejection of claims 1, 3, 9, 10, 12, 15, and 21 under 35 U.S.C. Â§ 103(a) as obvious over Tung, we agree with Appellant that the Examiner reversibly erred in finding that the microspheres taught by Tung are voids as that term is used by Appellant. Appeal Br. 14. Appellant uses the term "voids" in the context of forming a structure of cellular material. Claims 1 and 12, preamble. Appellant provides evidence that "cellular" is understood to mean "containing cavities[]: having a porous texture," or "any material that contains many cells (either open or closed, or both) dispersed throughout the mass." Appeal Br. 14, citing merriam- webster.com/dictionary/cellular and thefreedictionary.com/cellular. Moreover, Appellant's Specification equates the voids of the cellular material with empty spaces or holes. Spec. 7:3-5; 9:14. This is consistent with Dictionary.com, which defines a void as "an empty space." Dictionary.com/browse/void. Thus, the meaning of "void" most consistent with the Specification as one of ordinary skill in the art would interpret it is as an empty space, which may contain air or other gas, but not solid material. The microspheres of Tung are solid glass. Tung, col. 4, 11. 13-15; 6 Sobel, US 3,784,182, patented Jan. 8, 1974. 5 Appeal2014-002402 Application 13/163,285 Fig. 2. It is not reasonable to interpret Tung's microspheres as voids as that term is meant by Appellant. Patten does not remedy the deficiency. Thus, we do not sustain the rejection of claims 1, 3, 9, 10, 12, 15, and 21under35 U.S.C. Â§ 103(a) as obvious over Tung or the rejection of claim 4 under 35 U.S.C. Â§ 103(a) as obvious over Tung in view of Patten. Rejection C The rejection of claims 1, 3, and 5-21under35 U.S.C. Â§ 103(a) as obvious over Mullen stands on a different footing. As found by the Examiner, Mullen is directed to a cellular material with metal cells that can be gas-filled or empty. Mullen, col. 1, 11. 52-59; col. 7, 11. 36-38; col. 9, Table 2 (cells with titanium walls filled with inert gas). Such gas-filled or empty cells are reasonably interpreted as a structure of material containing voids that when arranged together and bonded as taught by Mullen comprise a structure of cellular material. Mullen suggests forming a closed metal cell composite material by arranging the metal closed cells into an aggregate body and bonding them together by sintering, form-pressing, or fusion bonding. Mullen, col. 3, 11. 5-11. Mullen's closed metal cells have "a desired arrangement of a plurality of voids" as required by claim 1 given the arrangements depicted in Figures 2-5. Appellant argues that Mullen does not use a surface transformation process to form the voids, that claims 1 and 12 require "the plurality of voids within the structure separated by a critical length (A.c) that is dependent on the radius (RC) of a number of holes used to form the plurality of voids using the surface transformation process," and that "the claimed surface transformation process provides the [claimed] structure with distinctive 6 Appeal2014-002402 Application 13/163,285 characteristics that result in an end product with a particularly 'organized' arrangement of consistently formed voids." Appeal Br. 18-19. First, although Mullen suggests forming the cellular material using a different process than that described in Appellant's Specification, we cannot say that the bare words "surface transformation process" as used in claims 1 and 12 patentably distinguish the cellular material of the claim from that of Mullen. In one process, Mullen teaches forming a metal sheet 10, shown in Figure l 8A, into a cell configuration as shown in Figure l 8B, and then filling with filler 14, sealing cell 18, 20, and heat treating 22. Mullen, col. 10, 11. 39--46. Figures l 8A and l 8B are reproduced below: L~" l4 / 20 .,/ 22 \ t 10 i i ' / " Â·' ' l . , f i r ~~;~ ----f.?5Â·"' (~ ,~ L"_J I" .... t&~:d tZj !:L":d '