Ex Parte Siewert

Patent Trial and Appeal Board

Oct 31, 2018

14277448 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/277,448 05/14/2014
20411 7590 11/01/2018
The Linde Group
200 Somerset Corporate Blvd.
Suite 7000
Bridgewater, NJ 08807
FIRST NAMED INVENTOR
Erwan Siewert
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.
Pl3C070 7077
EXAMINER
DODSON, JUSTIN C
ART UNIT PAPER NUMBER
3761
MAIL DATE DELIVERY MODE
11/01/2018 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 ERW AN SIEWERT
Appeal 2018-000911
Application 14/277 ,448
Technology Center 3700
Before JENNIFER D. BAHR, FRANCES L. IPPOLITO, and
SEAN P. O'HANLON, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Erwan Siewert (Appellant) 1 appeals under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 1, 3-5, and 7-13. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies Linde AG as the real party in interest. Br. 3.
Appeal 2018-000911
Application 14/277 ,448
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method for gas metal arc welding, wherein a welding
current is passed through a wire electrode and the wire electrode
is melted by a welding arc at a welding arc contact point,
characteri[ z Jed in that at least one parameter that influences the
Joulean heating of the wire electrode is adjusted wherein the at
least one parameter is a current contact point on the
wire electrode that the welding current reaches first.
REJECTIONS
I. Claims 3 and 4 stand rejected under 35 U.S.C. § 112(b) as
indefinite.
II. Claims 1, 5, 7-9, and 13 stand rejected under 35 U.S.C. § 103 as
unpatentable over Brabander (US 2004/0188406 Al, published
Sept. 30, 2004) and Rygiol (US 3,789,186, issued Jan. 29, 1974).
III. Claims 3 and 4 stand rejected under 35 U.S.C. § 103 as
unpatentable over Brabander, Rygiol, and Hutchison
(US 2012/0248080 Al, published Oct. 4, 2012).
IV. Claim 10 stands rejected under 35 U.S.C. § 103 as unpatentable
over Brabander, Rygiol, and Amata (US 2008/0272100 Al,
published Nov. 6, 2008).
V. Claim 11 stands rejected under 35 U.S.C. § 103 as unpatentable
over Brabander, Rygiol, and Yamazaki (US 2011/0259853 Al,
published Oct. 27, 2011 ).
2
Appeal 2018-000911
Application 14/277 ,448
VI. Claim 12 stands rejected under 35 U.S.C. § 103 as unpatentable
over Brabander, Rygiol, and Stol (US 4,447,703, issued May 8,
1984).
DISCUSSION
Rejection I
The Examiner determined that claim 3, as well as claim 4, which
depends from claim 3, is indefinite because it is unclear whether "a contact
point of the welding arc with the wire electrode" recited in claim 3 is "the
same 'welding arc contact point' recited in claim 1." Final Act. 2.
Appellant does not present any substantive arguments contesting this
rejection. See Br. 15. Rather, Appellant contends that the amendment
submitted by Appellant on January 10, 2017, which the Examiner did not
enter (Adv. Act., dated January 23, 2017), would overcome the rejection. Id.
Appellant has waived any argument of error, and we summarily sustain the
rejection of claims 3 and 4 under 35 U.S.C. § 112(b ). See In re Berger, 279
F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err in
sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the
applicant failed to contest the rejection on appeal).
To the extent that Appellant's reference to the amendment submitted
on January 10, 2017, may be a request that we review the Examiner's
decision not to enter the amendment, we cannot grant such relief. The
refusal of an examiner to enter an amendment of claims is reviewable by
petition under 3 7 C.F .R. § 1.181, and not by appeal to the Board. In re
Mindick, 371 F.2d 892,894 (CCPA 1967); see also 37 C.F.R. § 4I.37(c)(2).
3
Appeal 2018-000911
Application 14/277 ,448
Rejection II
In contesting the rejection of claims 1, 5, 7-9, and 13 under
35 U.S.C. § 103, Appellant presents arguments for independent claim 1, but
does not present any separate arguments for dependent claims 5, 7-9, and
13. Br. 19-22. Thus, we decide the appeal of this rejection on the basis of
claim 1, with claims 5, 7-9, and 13 standing or falling with claim 1. See
37 C.F.R. § 4I.37(c)(l)(iv) (permitting the Board to select a single claim to
decide the appeal as to a single ground of rejection of a group of claims
argued together).
The Examiner found that Brabander discloses the method recited in
claim 1, except that Brabander does not disclose adjusting a current contact
point on the wire electrode that the welding current reaches first. Final
Act. 4. However, the Examiner found that Rygiol teaches adjusting a
current contact point on the wire electrode that the welding current reaches
first. Id. In particular, the Examiner found that rollers 20 and 22 define a
current contact point on wire 14. Id. (citing Rygiol, col. 2, 11. 40-55; col. 3,
11. 25-50; col. 4, 11. 20-35; Figs. 1, 2). The Examiner determined it would
have been obvious to modify the mechanism by which current contacts
Brabander's wire 510 by using an arrangement as taught by Rygiol "in order
to allow current to be transferred to the wire without significant burning or
pitting, while preventing wire deformation or bending thus allowing the use
of different diameter wires." Id. at 5. Appellant does not dispute the
Examiner's combination of Brabander and Rygiol, stating, "Rygiol ...
teaches replacing a contact tube [ of Brabander] with rollers to improve the
contact point." Br. 21.
4
Appeal 2018-000911
Application 14/277 ,448
Rygiol's objective is to provide improved current transfer to the wire
in welding procedures in which the wire is continuously advanced to a weld
area where metal from the wire is deposited to create a weld. Rygiol, col. 2,
11. 5-9. Rygiol transfers current from power source 12 to wire 14 by means
of rollers 20 and 22. Id., col. 3, 11. 27-50. Springs 30 bias rollers 22 toward
rollers 20 to hold beveled engaging surfaces 36 of rollers 20 and 22 against
wire 14 so that "pressure is applied to four nearly equally spaced points
around the periphery of the wire 14" as wire 14 passes through hole 38 in
housing 18, thereby transferring current through rollers 20 and 22 to wire 14.
Id., col. 3, 11. 59----67; col. 4, 11. 29-33. Rollers 20 and 22 fit closely within
bores 24, but float in the direction of the axis of shafts 26 "so as to always
adjust to a proper desired position relative to" wire 14, thereby permitting
wires of different diameters to be accommodated. Id., col. 3, 11. 51-52;
col. 4, 11. 34--39. Springs 30 are appropriately adjusted or selected so that
they exert adequate pressure on rollers 22 to establish electrical contact
between the rollers and the wire and to feed the wire along without metal
deformation. Id., col. 4, 11. 47-50.
Rygiol's wire feeding/current contact arrangement adjusts the current
contact point on the wire electrode that the welding current reaches first
by adjusting the position of the rollers relative to the wire to achieve
satisfactory current transfer from the rollers to the wire. 2 Indeed, Appellant
admits that this is the case. Br. 25 (stating, "Rygiol teaches a method for
2 See Ans. 7 (construing "the term 'adjusted' to mean 'to bring to a more
satisfactory state'"). Appellant does not dispute this construction or assert a
different construction.
5
Appeal 2018-000911
Application 14/277 ,448
adjusting the current contact point on the wire electrode that the welding
current reaches first.").
Appellant submits that Brabander, by itself, does not disclose that the
parameter adjusted "is a current contact point on the wire electrode that the
welding current reaches first," as recited in claim 1. Br. 20. This argument
is unavailing because it attacks Brabander individually, rather than in
combination with Rygiol. "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) (citing In re Keller, 642 F.2d 413,425 (CCPA
1981).
Appellant also argues that "the cited references do not teach or
suggest together ... chang[ing] the Joule heating by moving the contact
point without changing the distance between the workpiece and the torch."
Br. 21. Appellant acknowledges that Rygiol "teaches replacing a contact
tube with rollers to improve the contact point," but submits that "[ w ]hile
rollers will rotate if the wire is fed, the contact distance and therefore the
stick-out (and Joule heating) will remain constant and does not change." Id.
Appellant's arguments that Rygiol does not teach moving the contact
point or changing the stickout are unavailing because claim 1 does not
require moving the contact point or changing the stickout. See In re Self,
671 F.2d 1344, 1348 (CCPA 1982) (holding that limitations not appearing in
the claims cannot be relied upon for patentability). As for the Joulean
heating, claim 1 recites that the at least one parameter that is adjusted
"influences the Joulean heating." Br. 35 (Claims App.). Rygiol's spring-
biased rollers influence Joulean heating by providing sufficient physical
6
Appeal 2018-000911
Application 14/277 ,448
contact with the electrode wire to establish electrical contact, thereby
influencing the current transfer and, thus, the J oulean heating of the wire
electrode, as recited in claim 1.
For the above reasons, Appellant does not apprise us of error in the
rejection of claim 1 under 35 U.S.C. § 103. Accordingly, we sustain the
rejection of claim 1, as well as claims 5, 7-9, and 13, which fall with claim
1, as unpatentable over Brabander and Rygiol.
Rejection III
In contesting the rejection of claims 3 and 4 under 35 U.S.C. § 103,
Appellant presents arguments for claim 3, but does not present any separate
arguments for claim 4, which depends from claim 3. Br. 23-26. Thus, we
decide the appeal of this rejection on the basis of claim 3, with claim 4
standing or falling with claim 3.
Appellant asserts that "[t]he present invention ... adjusts the current
contact point to vary the stickout length to adjust the Joulean heating of the
wire electrode" and contends that "[t]he combination of Brabander, Rygiol[,]
and Hutchison does not teach this invention." Br. 25. Appellant also asserts
that "Hutchison does not adjust the stick out." Id.
Although Appellant's Specification discloses adjusting the stickout
(see Spec. ,r,r 24, 34), claim 3 does not recite adjusting, or varying, the
stickout. See Ans. 13 (noting that the features of adjusting the stickout and
adjusting the current contact point to vary stickout length are not recited in
claim 3). In determinations of obviousness, "the name of the game is the
claim." In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). Claim 1,
from which claim 3, depends, recites that the current contact point on the
wire electrode is adjusted, and claim 3 recites that a stickout is set by means
7
Appeal 2018-000911
Application 14/277 ,448
of the current contact point as the parameter that influences the Joulean
heating of the wire electrode. Br. 35 (Claims App.). Neither claim 1 nor
claim 3 requires that the current contact point be adjusted so as to be moved
closer to or further away from the welding arc contact point or to vary the
stickout. Claim 3 defines "stickout" as "between the current contact point
and a contact point of the welding arc with the wire electrode." Id. Thus, by
definition, the "stickout" of Brabander, as modified in view of Rygiol to
replace the contact tube with current contact rollers, is set by means of the
current contact point. The Examiner relied on Hutchison merely "to teach a
welding wire stickout length of between 1 mm and 500 mm, as required by
claim 4." Ans. 12.
For the above reasons, Appellant does not apprise us of error in the
rejection of claim 3 under 35 U.S.C. § 103. Accordingly, we sustain the
rejection of claim 3, as well as claim 4, which falls with claim 3, as
unpatentable over Brabander, Rygiol, and Hutchison.
Rejections IV and V
In contesting the rejections of claims 10 and 11 under
35 U.S.C. § 103, Appellant argues only that neither Amata nor Yamazaki
makes up for the asserted deficiency in the combination of Brabander and
Rygiol vis-a-vis claim 1. See Br. 27-30. For the reasons set forth above,
Appellant's arguments do not apprise us of error in the Examiner's
conclusion that Brabander and Rygiol render obvious the subject matter of
claim 1, and, likewise, fail to apprise us of error in the rejections of claims
10 and 11. Accordingly, we sustain the rejection of claim 10 as unpatentable
over Brabander, Rygiol, and Amato, and the rejection of claim 11 as
unpatentable over Brabander, Rygiol, and Yamazaki.
8
Appeal 2018-000911
Application 14/277 ,448
Rejection VI
Claim 12 recites passing a heating current through the wire electrode
in a separate heating circuit in addition to the welding current. Br. 36
(Claims App.). The Examiner found that Brabander does not disclose
passing a separate heating current through the wire in a separate heating
current circuit, but found that Stol teaches providing "preheat supply 24 and
welding supply 10, which supply a heating current and a welding current to
the electrode, respectively." Final Act. 10 (italics omitted) ( citing Stol, Fig.
2). The Examiner also found that Stol teaches that the advantage of passing
a heating current through the wire electrode in a separate heating circuit in
addition to the welding current is to "increase the heat content of the wire
electrode, thereby reducing weld dilution." Id. at 10-11 (citing Stol, col. 1,
11. 50-60). Thus, the Examiner determined it would have been obvious
to modify the method of Brabander to include passing a heating current
"through the wire electrode in a separate heating current circuit in addition
to the welding current," as taught by Stol, "in order to increase the heat
content of the wire electrode, thereby reducing weld dilution." Id. at 11.
Appellant does not specifically contest the Examiner's findings
regarding the teachings of Stol or the Examiner's reasoning in combining the
teachings of Stol with Brabander. See Br. 31-32. Rather, Appellant argues
that, "[ w ]hile Stol teaches that stickout can be better controlled by reducing
the amount of welding current passing through the wire," neither Brabander
nor Rygiol teaches or suggests "a need to better control the length of the
stickout of the electrode." Id. at 32. Thus, Appellant contends that "there is
no teaching or suggestion for supplementing the welding current with
preheating." Id.
9
Appeal 2018-000911
Application 14/277 ,448
Appellant's argument does not apprise us of error in the rejection
of claim 12 because it does not address the reasoning articulated by the
Examiner. The Examiner did not rely on Stol for its discussion of stickout.
See Ans. 14.
Accordingly, we sustain the rejection of claim 12 as unpatentable over
Brabander, Rygiol, and Stol.
DECISION
The Examiner's decision rejecting claims 3 and 4 under
35 U.S.C. § 112(b) is AFFIRMED.
The Examiner's decision rejecting claims 1, 3-5, and 7-13 under
35 U.S.C. § 103 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
10